1

DUAL CITIZENSHIP OR DUAL NATIONALITY: ITS DESIRABILITY

AND RELEVANCE TO NAMIBIA

by

ARLETTE KALVELAGEN

submitted in accordance with the requirements

for the degree of

MASTER OF LAWS

at the

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: PROF H C A W SCHULZE

FEBRUARY 2015

2

ABSTRACT

This dissertation endeavours to determine whether the concepts nationality and

citizenship are interchangeable, or whether they each mean something very specific.

In order to ascertain where the “origin” of using the terms nationality and citizenship

interchangeably might have occurred, a closer look at antiquity and its practices is

necessitated. The question is also addressed whether a person could be in

possession of dual nationality and/or dual citizenship. The desirability of any dual

status is also discussed and whether such dual status is to be tolerated and if yes,

under which, if any, conditions.

KEY WORDS

Citizenship, nationality, jus soli, jus sanguinis, dual nationality, dual citizenship,

international law, domicile.

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TABLE OF CONTENTS

CHAPTER 1

Introduction – defining the concepts relating to nationality and citizenship 5

CHAPTER 2

The origin of citizenship and nationality 16

The ancient Greeks 16

The ancient Romans 18

Philosophers and political thinkers 21

Medieval Europe 22

Jus soli versus jus sanguinis 23

Citizenship 26

Nationality 30

CHAPTER 3

Nationality and International Law 33

Diplomatic protection 39

International Conventions pertaining to nationality 42

Domicile 47

CHAPTER 4

Dual-status – its origin and desirability 53

Nationality practices of various states 65

CHAPTER 5

An African perspective with special reference to Namibia 72

Nigeria 78

Botswana 81

South Africa 83

Namibia 85

4

CHAPTER 6

Conclusion 90

BIBLIOGRAPHY 100

5

CHAPTER ONE

Introduction – defining the concepts relating to nationality and citizenship

Searching for a definition of the terms “nationality” or “citizenship”, one is invariably

bombarded with views, opinions and philosophies. Upon closer inspection it

becomes clear that scholars, lawyers and politicians alike often use these terms

interchangeably. “Nationality in the sense of citizenship of a certain State must not

be confused with nationality meaning membership of a certain nation in the sense of

race.”1 Namibian legislation2 by way of an example uses the term “citizenship”

instead of “nationality” and so fails to draw a clear distinction between the two

concepts. One may become tempted to ask, if the learned persons amongst us hold

such conflicting views, how is Joe Public supposed to know or understand these

concepts, which can be daunting and confusing? In this dissertation an attempt will

be made to clarify and simplify the issues relating to nationality, citizenship and

multiple statues.

The question of nationality and/or citizenship is generally a very personal and often

an emotional matter. This becomes even more so for persons who were born in one

country, yet have made a life for themselves in another country – in essence a

person of dual status. The following may be a typical example of such a case:

Abigail is born in Italy to an Italian mother and a Dutch father. Her parents emigrate

to the then South West Africa (now Namibia) when Abigail is 5 years old. In 1990,

Namibia becomes an independent, sovereign state and Abigail is at the time aged 22

years. What might Abigail’s nationality/citizenship status be? Is she an Italian

national by way of having been born in Italy, or is she an Italian citizen? What about

her father’s Dutch nationality, does it also “affect” her, and if so, in what way? Being

resident (domiciled) in Namibia, does it make her a citizen or national of Namibia?

Does she have single, dual or even multiple citizenship and/or nationality? Is it even

1 Boll AM Multiple Nationality and the International Law (2007) 66. Boll quoted Oppenheim, LFL

International Law. A treaties (1905) 588. 2 Namibian Citizenship Act 14 of 1990 as compared to the European Convention on Nationality that

only uses the term “nationality”.

6

necessary to answer any of the above questions; does it really matter, and if yes,

then to whom and when?

In evaluating the various definitions that one may find relating to nationality and

citizenship, it becomes clear that neither term carries a clear and concise meaning.

Spiro states that historically citizenship status was considered a matter of national

self-definition, whilst nationality was equated with identity and in most cases

coincided with ethnic, religious or other sociocultural community markers.3 In broad

terms, nationality may be defined as a people having common origins or traditions

and often comprising a nation,4 or as the country of a person’s citizenship or country

in which the person is deemed a national,5 or as the state or country in which a

person belongs because of birth or through naturalisation.6 Nationality may also be

defined as the legal bond between a person and a State, thus making nationality a

legal concept.7 Cook-Martin states that nationality may also be referred to as

assumed citizenship, postulating that this type of citizenship reflects “a subjective

sense of identification rather than a legally defined status linking the individual to a

broader community”.8 Citizenship on the other hand may be defined as the status

of a citizen with rights and duties, being a native or naturalized member of a state or

other political community.9 De Groot states that “citizenship implies enabling a

person to actively participate in the constitutional life of a particular State”.10 Cook-

Martin refers to citizenship as legal citizenship, which according to him, defines an

individual’s membership in a state prescribed by formal official rules or laws.11

3 Spiro PJ “A New International Law of Citizenship” The American Journal of International Law Vol. 105

No. 4 (October 2011) 694. 4 http://wordnet.princeton.edu [accessed: 30 September 2013]. 5 http://www.immigration.com [accessed: 30 September 2013]. 6 http://www.krootlaw.com/info-library/legal-directory [accessed: 2 May 2014]. 7 De Groot G-R “Sporting Nationality: Remarks on the Relationship between the General Legal

Nationality of a person and his ‘Sporting Nationality’” The International Sports Law Journal (2006) 2

[accessed via http://www.questia.com on 18.June 2014]. 8 Cook-Martin D The Scramble for Citizens Dual Nationality and State Competition for Immigrants

(2013) 6. 9 http://wordnet.princeton.edu [accessed: 2 May 2014]. 10

De Groot op. cit. 3. 11

Cook-Martin supra at 6.

7

Considering the above definitions, it becomes clear that the concepts of nation, state

and nation-state also need to be discussed in order to reach a better understanding

of what nationality and citizenship entail. According to Renan12 a “nation is a

spiritual principle, the outcome of the profound complications of history; it is a

spiritual family not a group determined by the shape of the earth.” The nation is

thus the culmination of a long past of endeavours, sacrifices and devotions.13 Miller14

is of the opinion that “the nation is conceived as a community extended in history

and with a distinct character that is natural to its members.” According to

Oommen,15 a nation can be created in various ways and from a variety of bases and

circumstances, the two commonest being a territorial state or political community

and a community of culture. Hoffman mentions that the state has also been defined

as an institution which claims a monopoly of legitimate force for a particular

territory.16

Antiquity, however, was unfamiliar with the term nation and according to Renan,

classical antiquity had republics, municipal kingdoms, confederations of local

republics and empires.17 “Gaul, Spain and Italy, prior to their absorption by the

Roman Empire, were collections of clans, which were often allied among themselves

but had no central institutions of dynasties.”18

Adejumobi postulates that a modern nation-state consists of a collection of

nationalities all bound together through the tie of citizenship.19 “Citizenship is an

instrument of social closure through which the state lays claim to and defines its

sovereignty, authority, legitimacy and identity.” 20 Oommen21 by way of an example

states that Britain is a multi-national state where the British people not only share a

12

Renan E What is a Nation? (1990) 19. 13

Ibid. 14

Miller D On Nationality (1997) 36 [Accessed from Oxford Scholarship Online on 15 October 2013]. 15

Oommen TK Citizenship and National Identity (1997) 16. 16

Hoffman, J “State and Nationalism” in Hoffman J Citizenship beyond the State (2004) 49. 17

Renan supra at 8. 18

Ibid. 19

Adejumobi S “Citizenship, Rights, and the Problem of Conflicts and Civil Wars in Africa” Human Rights Quarterly 23 (2001) 151 & 152.

20 Ibid.

21 Oommen supra at 18.

8

common citizenship identity, but also have their specific national identities – English,

Welsh, Scottish and Irish. From this it may thus be concluded that a nation is a

territorial entity to which the people have an emotional attachment and to which

they invest a moral meaning.22

Considering the aforegoing, nationality may therefore be defined as the collective

identity which the people of the nation acquire by identifying with the nation whether

ancestral or adopted.23 It may thus be said that nationality is something for the most

part unchosen and unreflectively acquired,24 and according to Cook-Martin can span

more than one jurisdiction as when, for example, ethnic Germans in Namibia identify

with the German nation.25

Boll26 states that, strictly speaking, the term “national” applies to every individual in a

territorial nation-state who has the duty of permanent allegiance to that state, and

therefore nationality should essentially be a term of international law which denotes

that there is a legal connection between the individual and the state for external

purposes. The concept of ‘nation’, according to Miller “conveys the idea of a

circumscribed body of people bound together by common customs and capable of

being represented by a prince or parliament”27 It may be deduced that national

communities therefore exist when their members recognise one another as

compatriots and believe that they share similar characteristics.28 The connection that

links an individual to a particular state is labelled a link of “nationality”, irrespective

of what the particular individual’s ethnic background, origin or identity might be.29

Nationality thus “indicates no more than that a person belongs to a certain State”30

and as such in terms of international law, affords the state jurisdiction over the

person and affords the person the protection of the state. In Article 15(1) of the

22

Ibid. 23

Oomen op. cit. 19. 24

Miller op. cit. 44. 25

Cook-Martin op. cit. 7. 26

Boll AM op. cit. 58. 27

Miller supra at 30. 28

Id. at 22. 29 Boll supra at 58. 30 Per Nestadt JA in Tshwete v Minister of Home Affairs 1988 (4) SA 586 (A) at 613.

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Namibian Constitution, the notion of “nationality” is used to establish a child’s right to

acquire a name and nationality from birth.31 According to Sales, nationality is always

a constructed identity which is rooted in the past as well as in contemporary social

institutions.32

In the 16th century, Habermas33 postulated, kingdoms gave birth to those territorial

states (England, France, Portugal, Spain and Sweden) which were later gradually

transformed into nation-states. The nation-state provided both the infrastructure for

rational administration as well as the legal framework for free individual and

collective action. In its classical usage, nations are communities of people of the

same descent, who are geographically integrated to form a settlement or

neighbourhood.34 Such communities essentially share a common language, customs,

culture and traditions, but are not yet politically formed into state organisations.35

The origins and early history of nation-states are, however, disputed. A major

theoretical issue is: "Which came first, the nation or the nation state?" and Professor

Steven Weber of the University of California, Berkeley, has advanced the hypothesis

that the nation-state is an inadvertent by-product of 15th-century advances in map-

making technologies.36 Herzog37 suggests that the nation-state came into being in

the 18th century in America and Europe. In the late 19th century the nation-state

flourished in Europe and from then on spread to other regions of the world, mainly

through the colonisation of newly discovered territories.38 Miller39 on the other hand,

states that “ ‘nation’ must refer to a community of people with an aspiration to be

politically self-determining and ‘state’ must refer to the set of political institutions that

they may aspire to possess for themselves.” From this, one may conclude that the

31 The Constitution of the Republic of Namibia 1990 [ http://www.gov.na/constitution1 ]. 32

Sales R “What is ‘Britishness’, and Is It Important?” in Calder G, Cole P and Seglow J Citizenship Acqusition and National Belonging (2010) 124.

33 Habermas J “Citizenship and National Identity” in: The Condition of Citizenship (1994) 21.

34 Id. at 22.

35 Ibid.

36 “How Maps Made the World". Wilson Quarterly. (Summer 2011). [Retrieved: 28 July 2011].

37 Herzog B ”Dual Citizenship and the Revocation of Citizenship” Democratic Paths and Trends Research in Political Sociology vol. 18 (2010) 91.

38 Ibid.

39 Miller op. cit. 19.

10

misperception of ”nation” instead of “state” is a fundamental error, even if one that

is encouraged by everyday usage.40 Sales suggests that the notion of “nation state”

contains fundamental contradictions between “a state, which holds sovereignty

within particular geographical borders, in which certain common rights are taken for

granted and the notion of a nation which suggests some common history and

culture.”41

It is, however, today understood that a sovereign state is a non-physical juridical

entity of the international legal system that is represented by a centralised

government which has supreme independent authority over a geographic area.42

According to Miller, it is the territorial element that has shaped the connection

between nations and states.43 A sovereign state thus has a permanent population, a

government and the capacity to enter into relations with other sovereign states.44

Holston and Appadurai45 postulate that “nation-states have always pursued to

establish citizenship as that identity which subordinates and brings together all other

identities to create a uniform body of law”. Class differences always had a

fundamental influence on the traditional distinction between citizen and subject, and

according to Strydom, when all inhabitants of a state are subject to one government

body, class differences are eliminated.46 The rise of nation-states, according to

Turner, required the creation of national citizenship.47 Hoffman, on the other hand,

postulates that nations are communities that do not have to produce states in order

40

Ibid. 41

Sales op. cit. 124. 42

"The powers of external sovereignty on the part of the State do not depend on the affirmative grant

of this in the Constitution. ... The State would not be completely sovereign if it did not have in common with other members of the family of nations the right and power in the field of international

relations equal to the right and power of other states. These powers of the State include the power

to declare war or to participate in a war, to conclude peace, to make treaties, and maintain diplomatic relations with other states." — Crotty v An Taoiseach [1987] IESC 4 (9 April 1987).

43 Miller op. cit 25 - 26.

44 Shaw MN International Law. (2003) 178.

45 Holston J and Appadurai A “Cities and Citizenship” Public Culture (1996) 187.

46 Strydom HA “The theory of citizenship: a reappraisal” The Comparative and International Law Journal of Southern Africa Vol. 18 No. 1 (1985) 106.

47 Turner B “Citzenship, Nationalism and Nation-Building” in The SAGE Handbook of Nations and Nationalism (2006) 226.

11

to be “adequate” nations, as national identity is but only one way in which people

differentiate themselves.48

According to Matheson, citizenship “reaches back to the time when men first began

to group themselves together in societies for common life and government more

comprehensive than the village.”49 Borchard50 states that citizenship traces its origin

to the time when the city was the largest sovereign unit to which the individual was

attached. Its meaning has therefore resultantly expanded with the growth of the

unit into the modern state of today. According to the Aristotelian model, which was

based on the concept of the Greek polis, a citizen is one who either takes or is

subject to, its decisions. The citizen must therefore be integrated into the political

collective.51 Citizenship was thus intimately connected with the right to vote, to

actively participate in public life. Morse52 proposed that citizenship was a term

generally used to describe the political relationship which existed between an

individual and the sovereign state. This was either natural or acquired. It has been

advanced by Holston that cities have always been the stages for politics,53 whilst

Turner opines that modern citizenship is a political product of the English Civil War,

the American War of Independence and the French Revolution.54 The idea of

citizenship has, according to Cole, “dominated political theory since the beginning of

that discipline.”55 In essence political theory explores the core questions of “what it

is to be a political community and what it is to be a member of such a community,”

and therefore the idea of citizenship gives the political community its form and

content.56

48

Hoffman op. cit. 11. 49

Matheson PE “Citizenship” International Journal of Ethics Vol. 8 No.1 (Oct. 1897) 22. 50

Borchard EM, Diplomatic Protection of Citizens Abroad (1970) 7. 51

Alfonsi A “The Emerging Stirrings in Western Europe” in Citizenship and National Identity 55. 52 Morse AP A Treatise on Citizenship by Birth and Naturalisation (1881 ed) at preface x

http://heinonline.org [accessed on 12 September 2014]. 53

Holston and Appadurai op cit. 189. 54

Turner op. cit. 227. 55

Cole P “Introduction: ‘Border Crossings’ – The Dimensions of Membership” in Calder G, Cole P and

Seglow J, Cititzen Acquisition and National Belonging (2010) 1. 56

Id. at 2.

12

The term “citizenship” may, therefore, not only be used to denote that an individual

belongs to a state for the purpose of international law, but is best used to describe

the individual’s civil and political rights under the state’s municipal law.57 According

to Sejersen, citizenship denotes an active mode which defines the duties of the

citizen and a passive mode which denotes rights and entitlements.58 Sales opines

that citizenship is “ not an ethnic, blood and soil concept, but a more abstract

political idea, that implies equal legal, political and social rights for people inhabiting

a certain national space.”59 According to Hoffman, the modern perception of

citizenship is based on the presumption that everyone in society is entitled to the

same rights and responsibilities.60 Cole states that in theory citizenship is established

by a shared national identity, promotes social cohesion, provides a setting for

(democratic) participation and acts as a motivator for citizens to make the sacrifices

that social justice may demand.61 According to Morse, “citizenship in the narrow

sense, confers the imprescriptible right to speak for the community, to act as its

authoritative exponent.”62

Historically, according to Cook-Martin, residence in a state’s jurisdiction made the

individual available for official administration, but did not automatically make him/her

a member of such state.63 Citizenship has, however, become a complicated issue as

a result of citizenship admission practices having become cumbersome and

problematic. 64 Köchler suggests that the overemphasis on state sovereignty in the

traditional nation-state has led to the individual being held hostage by an abstract

entity (the nation state) and has thereby negated his/her autonomy and individuality

as citizen. 65 The individual is thus completely absorbed, resulting in a false and

57

Dugard J International Law: A South African Perspective (2012) 282. 58

Sejersen TB “I vow to Thee My Countries”: The Expansion of Dual Citizenship in the 21st Century”

International Migration Review Vol.42 No.3 (2008) 526. 59

Sales op. cit. 137 60

Hoffman op. cit. 52. 61

Cole op. cit. 9. 62

Morse op. cit. 6. 63

Cook-Martin op. cit. 6. 64 Van Gunsteren H, “Four Conceptions of Citizenship” in Van Steenbergen B ed, The Condition of

Citizenship (1994) 38. 65 Köchler H “The Concept of Nation and the Question of Nationalism” in Dunne M and Bonazzi T, eds

Citizenship and Rights in Multicultural Societies (1995) 44.

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misleading sense of unity being created. A case in point might be the divided loyalty

or allegiance that a person who belongs to a certain tribe, but whose tribal lands

have been divided by artificial national borders and whose country of “forced”66

residence is now at war with the other country where the “rest” of his tribe resides,

experiences.

Dual status, whether it be dual-citizenship or dual-nationality, denotes that

individuals combine membership in and of two nation-states. Such a dual-status

usually arises whenever a person is born within the territory of a country where the

law of territoriality (jus soli) holds, but whose parents, or only one parent, are

nationals of a country that observes the blood principle (jus sanguinis).67 Such an

individual would thus theoretically be able to be a national of his/her country of birth

as well as of his/her country of decent. Spiro advances that with the increase in

international migration, “many states broadened birth right citizenship to include not

only those born within the nation’s borders but also those born in other countries to

citizen parents.”68 “Dual citizenship challenges one of the most stable and long

lasting assumptions of the modern era, namely that the nation-state constitutes the

highest institution and largest group of people to which an individual can affirm

allegiance.”69 According to Sejersen “dual citizenship does not fit a neat absolute

definition of a state as a closed territory with a defined homogenous citizenry”.70 It

is commonly accepted that national identity is linked to language, culture and

ethnicity and according to Hoffman, there is thus no need to assume that such

national identity has to be singular rather than plural in form.71

66

“Forced residence” in the sense that tribal members living in different nation states are not able to

freely move within their tribal lands where a national border may run through such land. Citizenship

practices often “complicate” the free movement of such tribal members. An example may be found with the Owambo people whose tribal lands stretch from the North of Namibia across the Kunene

River to the South of Angola. 67 Faist T and Gerdes J, Dual Citizenship in an Age of Mobility (2008) 4. 68

Spiro JP “Dual Nationality and the Meaning of Citizenship” Emory Law Journal Vol. 46 No. 4 (Fall

1997) 1418. 69 Howard MM “Variation in dual citizenship policies in the countries of the EU” International Migration

Review 39.3 (Fall 2005):697(24). 70

Sejersen op. cit. 524. 71

Hoffman op. cit. 56.

14

It is trite that person A being a member of State X may request diplomatic protection

from State X in an instance where State Y violates person A’s rights. In terms of

international law, State X’s rights to protect person A stems from the link of

nationality that should exist between person A and State X.72 According to Leigh

“the theory of diplomatic protection has its origin in the willingness of States to

concede to each other jurisdiction over all persons and property within their

respective territorial jurisdiction, while at the same time reserving the right to afford

their nationals protection in the event of injury to person or property resulting from

an act undertaken by another State in breach of international law.”73 With regard to

diplomatic protection, it is often argued that when a person of dual status requests

diplomatic protection, such dual status may lead to difficulties.

In Southern Africa the relationship between the state and its subjects has essentially

been one that was, and largely still is, formed around “ethnic” nationalities and as a

result, the Western idea or concept of nationalism and the nation-state has not

transferred easily to the African continent.74 In contrast to the developed states, the

growing obsession in Africa with regard to belonging, nationality and citizenship has

been a major factor in Africa’s various liberation struggles.75 Iroanya76 postulates

that due to the existence of diverse ethno-cultural groups within the same state,

various crises exist in most African states ensuing from the political competition for

resource control. Dorman et al maintain that the other debate in Africa concerns

ethnicity and whether ethnic groups are rooted in older identities, or whether they

were colonial constructions as it has been suggested that most Africans move in and

out of multiple identities.77

72

Leigh GIF “Nationality and Diplomatic Protection” The International and Comparative Law Quarterly

Vol. 20 No. 3 (July 1971) 453. 73

Id. at 455. 74

Heater D Citizenship: The civic ideal in world history, politics and education. (1990) 131. 75 Nyamnjoh FB “Local Attitudes towards Citizenship and Foreigners in Botswana” Journal of Southern

African Studies Vol.28 No.4 (Dec 2002) 755. 76 Iroanya RO Citizenship-Indigeneship Contradictions and Resource Control in Africa: A case for the

African tradition of Ubuntu Paper presented at 7th Annual Africa Day Conference, UNISA (June 2005) 1.

77 Dorman S, Hammett D and Nugent P Making Nations, Creating Strangers – States and Citizenship in Africa (2007) 6.

15

As may be gleaned from the above, the issues pertaining to nationality, citizenship

and dual or multiple statuses can be confusing and daunting. This dissertation

endeavours to clarify and to possibly simplify the various issues relating to

nationality, citizenship and dual or multiple statuses. An attempt is made to trace

the origins of the concepts of nationality and citizenship, to identify the origin of dual

or multiple statuses and to determine the influence that the various international

charters and other international instruments have or may have on nationality and

citizenship. A closer look is taken at how Africa and in particular Namibia views and

deals with nationality and citizenship.

It is submitted that the conclusion reached will clearly define whether an individual

can be a dual national and/or a dual citizen. It is further envisioned that the global

view that dual status is becoming more prevalent, and that such dual status should

be encouraged and welcomed in African states, will be supported, as it may bring

with it more positive economic results than the negative features that are continually

postulated.

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CHAPTER TWO

The origin of citizenship and nationality

“He, and only he, is a citizen who enjoys a due share

in the government of that community of which he is a member.”

Aristotle

In ancient times the terms citizenship and nationality had different meanings even

though they are used interchangeably today. Citizenship, throughout history, has

often been seen as an ideal status, closely allied with freedom, an important status

with legal aspects including rights, and it has sometimes been seen as a bundle of

rights, or a right to have rights78. The ancient Greeks and Romans, and later the

Europeans, give us valuable insight into and provide a foundation for what we today

term nationality/citizenship.

The ancient Greeks

Citizenship was a fundamental concept in the history of ancient Greece and classical

Athens. As the alleged ancestor of modern democracies and of western political

theory, classical Athens played a key role in the historical understanding of political

culture.79 Among the ancients, birth itself never fixed the political station conferred

by privilege to a citizen. Under the laws of the Athenians, the child followed the

nationality of its parents and thus the blood tie (jus sanguinis) determined

nationality. 80

78

Leary V "Citizenship. Human rights, and Diversity" in Alan C. Cairns, John C. Courtney, Peter

MacKinnon, Hans J. Michelmann, David E. Smith. Citizenship, Diversity, and Pluralism: Canadian and Comparative Perspectives. (2000) 247.

79 Lambert S Citizenship in classical Athens Departement Geschiedenis en Kunstgeschiedenis (UU)

2004 http://www.narcis.info/research [accessed: 12 September 2014]. 80 Morse A Treatiese op. cit. at 12. It is not the spot of earth upon which the child is born that

connects him/her to the national society, but rather the relationship of the child’s parents to that society.

17

Athenian men were essentially divided into three groups namely the citizens, the

metoici (resident aliens) and slaves. An Athenian citizen was - a male81 older than

18 years and whose forbearers had been Athenians for three generations. Such a

citizen could be elected to all offices of the state and enjoyed all the rights of free

men. Athenian citizens were all extremely proud of their origin, irrespective of

whether they were wealthy, poor or destitute.82 All inhabitants paid the same taxes

and served in the army in accordance with their income; as knights with their own

horse and a suitable retinue, or in the navy as captains of triremes, which they

themselves took care to man. Participating in the administration of the polis was

taken for granted from the citizen who voted, judged and took care to be informed

about what was happening in the city.83

Athenian citizenship was thus essentially based on the obligations of citizens towards

the community, rather than on rights given to its members. The people had a strong

affinity with the polis as their personal destiny, as the destinies of the entire

community were strongly linked.84 Important political and judicial offices were

rotated to widen participation and to prevent corruption.85

In addition to religious privileges and duties, the concept of citizenship for the

ancient Greeks revolved around political and economic rights at local level. An

important aspect of polis citizenship was exclusivity, as with polis was meant both

the political assembly as well as the entire society.86 Inequality of status was widely

accepted, as citizens had a higher status than non-citizens, such as women, slaves or

barbarians.87 Citizenship was not seen as a separate activity from the private life of

the individual person - there was no distinction between public and private life.88

81 In ancient times women were not allowed to play an active role in society. Society was ruled by

men alone and women were simply ignored. 82 Hall JV Ancient Greece Citizens (2008) http://EzineArticles.com/948123 [accessed:

30 September 2013]. 83

Ibid. 84

Hosking G Epochs of European Civilization: Antiquity to Renaissance. (2005) 1 - 2. 85

Ibid. 86

Pocock JGA The Citizenship Debates (1998) 32. 87

Id. at 33. 88

Ibid.

18

The obligations of citizenship were thus deeply connected into one’s everyday life in

the polis. Matheson writes that in the ancient Greek world, the city was the unit of

government and its area was limited by the fact that all citizens were to take part

immediately and in person in the duties of government.89

“Barbarians live in tribes and empires; Greeks live in city-states”, Heater90 quotes the

common belief held with pride by the ancient Greeks and the unique sophistication of

Greek civilisation was testimony to this. The Greek city-states were also the first

instances in which judicial functions were separated from legislative functions in the

law courts.91 Selected citizens served as jurors and they were often paid a modest

sum for their service.92 For the Greeks, citizenship thus related to the rights of a

person within a community as well as the relationship amongst the citizens as

members of a polis or community.93

The Ancient Romans

In the early history of Rome, only those who were Romans by birth could boast of

the proud title of “citizen”94. A select few peregrine, 95 who were domiciled at Rome

and who had been naturalised, could also lay claim to the title of “citizen”. The right

to Roman citizenship was firstly acquired by birth to parents who were Roman

citizens, secondly through liberation under certain circumstances, and thirdly by a

special concession granted by the people and the senate.96

In the Roman Empire, polis citizenship expanded from small scale communities to the

entire empire.97 Although roman citizenship was a prized relationship which was not

89

Matheson Citizenship op. cit. at 23. 90

Heater D World Citizenship and Government (1996) 1. 91

Hosking op. cit. 92

Ibid. 93 Boll Multiple Nationality op. cit. at 61. 94

Morse A Treatiese op. cit. at 20. 95 A peregrini is not a citizen, but a free person. Free men were divided into peregrini, Latini and

Italici. 96 Morse supra at 29. 97

Milne, B The History and Theory of Children’s Citizenship in Contemporary Society (2013) 28.

19

widely extended, the Romans, however, realised that granting citizenship to people

from all over the empire legitimised Roman rule over conquered areas.98 In the

course of time, citizenship was no longer a status of political agency, but had been

reduced to a judicial safeguard and the expression of rule and law.99

Roman citizenship was, however, more complex and legalistic than Greek citizenship.

Full citizenship entailed six privileges of which four were public rights and two private

rights.100 The public rights related to service in the army, voting in the assembly,

eligibility to public office and the legal right of action and appeal, while the private

rights pertained to intermarriage and trade with other Roman citizens.101 Citizenship

opened the possibilities for careers for which non-citizens were not eligible. Roman

citizenship further guaranteed complete equality before the law as neither race,

religion nor riches were determinants for acceptance.102 Roman citizenship related to

pride, patriotism, duty and devotion to the law.

The significance of Roman citizenship is, however, best understood in terms of

Roman Law. Roman Private Law was personal and controlled, and was applied to all

Roman citizens wherever they were. If one was a Roman citizen, then Roman law

usually applied.103 A Roman who had “lost” his citizenship as a result of having been

captured in war by the enemy and so becoming a slave to his captors, could resume

his Roman citizenship upon his return to Roman lands provided he never returned to

the enemy.104

A Roman citizen, under Roman Law, was entitled to all rights of a citizen, whereas a

peregrinus (a foreigner who cherished domicile elsewhere) was debarred from

98

http://citizenship.askdefinebeta.com [accessed on 2 May 2014]. 99

Refers to the Latin phrase civis romanus sum - I am a Roman citizen which implied, in a wide

sense, all the rights and duties associated with the status of Roman citizenship. In Acts 22 Paul

the Apostle, when imprisoned and on trial, claimed his right as a Roman citizen to be tried before the Caesar, and the judicial process had to be suspended until he was brought to Rome.

100 Heater Citizenship op. cit. at 16. 101

Ibid. 102

Id. at 17. 103 An example of this may be found in the Bible in Acts 22: 25-29, where the story is told of Paul who

was about to be flogged by Roman soldiers. 104 Boll Multiple Nationality op. cit. at 63.

20

certain legal rights.105 A peregrine could, for example, not make a testament as this

“right” was reserved for Roman citizens only. Peregrini were, however, able to

conclude legal transactions with Roman citizens, but only in the form as required by

the Roman ius civile and provided they were given the right to do so.106

Under ancient Roman civil law, domicili gave to the person the character of

inhabitant of the city where he was established. It did not confer the character of

citizen.107 The growth and organisation of the growing Empire brought into

prominence the double aspect of citizenship being at once local and imperial.108

Resultantly in the fourth century, the Romans introduced the concept of dual “Latin”

and “Roman” citizenship, thus enabling a man to be simultaneously a citizen of his

own city as well as of Rome.109 According to Morse, there were three ways in which

the ancient Latins could become Roman citizens, namely (1) the Latin left his native

city to come to Rome to establish himself and thus became entitled to demand the

title of Roman citizen; (2) when a Latin had fulfilled certain honourable offices or

stations, in either the civil or military services of his (new) city; or (3) a law of

sensilia Glaucia offered citizenship to Latins who should successfully maintain a

charge of embezzlement against a Roman magistrate.110 Heater suggests that the

Romans annexed the loyalties as well as the lands of their defeated enemies in

“exchange” for Roman citizenship.111 Morse further advances that, later during the

classical period, a man might be a citizen of several states – one by origin, one by

adoption and one by election.112

105

Cilliers AC, Loots C and Nel HC Herbstein and Winsen The Civil Practice of the Supreme Court of South Africa (2009) 391.

106 Schiemann G “Peregrinus” in: Brill’s New Pauly http://www.brillonline.nl.oasis.unisa.ac.za

[accessed: 29 July 2011.] This position, however, changed through the creation of a specific

praetor peregrinus. 107

Apathy P (Linz) “Domicilium” in Brill’s New Pauly. Later under Roman-Dutch law, the Dutch jurists

determined domicile to mean actual or permanent residence. 108

Matheson Citizenship op. cit. at 27. 109

Heater Citizenship op. cit. at 16. 110 Morse A Treatise op. cit. at 22. 111 Heater supra at 16. 112

Morse supra at 22.

21

While the Western Roman Empire fell in 476 AD, the Eastern Empire headquartered

at Constantinople endured. It has been suggested that as a result of historical

circumstances, Western Europe evolved with two competing sources of authority —

religious and secular — and that the ensuing separation of church and state was a

"major step" in bringing forth the modern sense of citizenship.113

Philosophers and political thinkers

Aristotle recognised that citizenship was a relative term depending upon the

features of any given constitution.114 The Greek concept of citizenship resulted from

the bond forged by the intimacy of participation in public affairs. Citizenship was

neither a right to be claimed, nor a status to be conferred on anybody outside the

established ranks of class, no matter how worthy an outsider might have been.115

Citizenship was seen as an inherited privilege, the responsibility of which was to be

shouldered with pride.116 According to Aristotle, a good citizen should possess the

knowledge and capacity required to rule and to be ruled.117

Aristotle's conception of citizenship was that it was a legally guaranteed role in

creating and running government.118 Aristotle's sense of citizenship depended on a

"rigorous separation of public from private, of polis from oikos, of persons and

actions from things" which allowed people to interact politically with equals.119 For

Aristotle citizenship was possible generally in a small city-state since it required direct

participation in public affairs120 with people knowing "one another's characters".121

113

Gross F Citizenship and ethnicity: the growth and development of a democratic multiethnic institution (1999) xi, xii, xiii & 4.

114 Heater Citizenship op. cit. at 3.

115 Id. at 4.

116 Ibid. 117 Id. at 3. 118

Taylor D, Turner B & Hamilton P (eds) Citizenship: Critical Concepts (1994)151. 119

Pocock op. cit. 32. 120

Heater D A Brief History of Citizenship (2004) 18. 121

Ibid.

22

Plato's idealised community was one of citizens who kept common meals to build

common bonds.122 A key part of citizenship was obeying the law and being "deferent

to the social and political system" and having internal self-control.123

Bartolus, a distinguished professor of Roman Law at Perugia who lived in the first

half of the 14th century, concluded that Roman traditions justified the belief that the

people as a whole should hold ultimate sovereign power.124 He accepted the need

for elected representatives and felt it necessary to define a person’s eligibility for this

status. Bartolus also distinguished between citizenship acquired by birth and that

acquired by conferment.125 The Roman statesman Cicero, while encouraging

political participation, saw that too much civic activism could have consequences that

were possibly dangerous and disruptive.126

Medieval Europe

During the Renaissance and growth of Europe, the transition was from people being

subjects of a monarch or lord to being citizens of a city and later to a nation.127

Having its own law, courts and independent administration was a distinguishing

characteristic of a city.128 Weber states that being a citizen often meant being

subject to the city's law in addition to assisting with the choosing of officials. Cities

were defensive entities, and its citizens were persons who were "economically

competent to bear arms, to equip and train themselves."129 As new political patterns

and relationships evolved during the Middle Ages, the characteristic feature of these

relationships was that of multi-faceted loyalty,130 where both the church and the

prince claimed allegiance. Geographically and culturally coherent nation states in

122

HeaterA Brief History op. cit. at 14-15. 123

Ibid. 124

Heater Citizenship op. cit. at 23. 125 Ibid. 126

Burchell D “Ancient Citizenship and its Inheritors” in Isin, Engin F, Bryan S Turner (co-eds)

Handbook of Citizenship Studies (2002) 89. 127

Taylor op. cit. 161. 128

Weber M Citizenship in Ancient and Medieval Cities (1998) 44. 129

Ibid. 130

Heater Citizenship supra at 20.

23

some recognisable modern form were already beginning to emerge in various parts

of Europe. The inhabitants of these lands came to identify themselves primarily as

for example Englishmen, Irishmen, Frenchmen etc., resulting in feelings of patriotism

and nationalism beginning to emerge.131 The medieval Frenchman was subject to

the monarch and not considered a citizen of France. The term citizen was confined

to the relationship of freely exercised rights and duties to a city or town and was

founded on the twin principles of freedom and fraternity.132

According to Heater, qualification for citizenship varied greatly from city to city and

over time. It was common place to group citizens into major and minor classes, as

for example property ownership signified a greater intent of commitment to the

community than just being an ordinary city dweller.133 A high proportion of the

citizenry also became engaged in political and administrative activities of various

kinds.134 Sejersen expresses that according to Marshall “the development of

citizenship has been in constant progress for more than 200 years to encompass a

wider array of civil, social and political rights in order to limit class conflict.”135

Jus soli versus jus sanguinis

Of the two principles of nationality, jus sanguinis (right of blood) is probably the

older, submits Flournoy,136 as it was the sole means of determining nationality

considering that an individual belonged to a family, a tribe or a people and not to a

territory. Although nations usually came to occupy well defined territories upon

attaining civilisation, they continued to be regarded as a collection of tribes, clans

and families.137 During the 18th century jus soli was the dominant criterion in

Europe, following feudal traditions which linked the person to the lord who held the

131 Heater Citizenship op. cit. at 20. 132

Id. at 21. 133

Id. at 22. 134 Ibid. 135

Sejersen “I vow” op. cit. at 525 with reference to Marshall TH, Citizenship and Social Class – and Other Essays Cambridge University Press 1950.

136 Flournoy RW (Jnr) “Dual Nationality and Election” The Yale Law Journal Vol. 30 No.6 (1921) 546.

137 Ibid.

24

land were the person was born.138 The French Revolution and the decree of the

1804 Civil Code reintroduced the Roman custom of jus sanguinis, which principle was

adopted throughout Europe in the 19th century and later became transplanted to the

colonies. 139

Safran140 expressed that when states were defined in terms of the sovereignty of

feudal lords or monarchs, “citizenship” applied according to the principle of jus soli,

whilst with the creation of “nation-states” and a state being based on the sovereignty

of the national community, jus sanguinis became the common operative principle.

Jus sanguinis inheritance of the father’s social and/or national status was the

principle that applied by natural law to the nobility and the common man.141 It may

be averred that nationality in terms of jus sanguinis is therefore automatically

imposed on a person by operation of the law at the time of birth.142 Most European

countries follow the jus sanguinis principle of nationality conferred by birth of a

parent or both parents, or ancestor(s) who is already a citizen of a particular

country.143 This principle may hold true for an infinite number of descendants, even

if such descendant is born outside of the country of nationality. The infinite

acquisition of nationality through jus sanguinis has, however, been limited by most

states to the first or second generation born outside of the country of nationality.144

An early form of partial jus soli dates from Cleisthenes’ reform of ancient Athenian

law.145 It developed further in the Roman world, where citizenship was extended to

138 Bertocchi G The Evolution of Citizenship: Economic and Institutional Determinants IZA (2006) 5. 139 Id. at 6. 140

Safran W “Citizenship and Nationality in Democratic Systems” in International Political Science Review (1997) 314.

141 http://h2ooflife.wordpress.com/jus-soli-origins [accessed on 22 January 2014].

142 Azizi S, Hajiazizi B & Hassankhani R “Absolute and conditional application of Jus Sanguinis”

International Law Research Vol 1. No. 1 (2012) 130. 143

Aspan, M Esq. Aspan Law Office, Immigration Attorney. www.aspanlaw.com/law-240.Birthright-

Citizenship [accessed on 22 January 2014]. 144

Azizi et al supra at 131. The acquisition of such nationality is often subject to both parents or at

least one parent being a national of the country of nationality. This holds true for countries such

as the United Kingdom, Germany and the Netherlands to mention a few. 145

http://www.britannica.com Cleisthenes of Athens [Accessed 02 May 2014].

25

all free inhabitants of the Roman Empire especially with the Edict of Caracalla.146 It

was much later with the independence of the English colonies in America and the

French Revolution that the foundations for jus soli were laid.

In times past, a “natural born subject” was deemed a natural subject of the King if

born within his domain (jus soli) and not born to foreign representatives or to the

women of foreign invaders.147 Scott states that the principle of birth within a country

conferring nationality is a natural principle and applies alike to all persons born in the

country, without reference to the nationality of their parents.148 (Nation)States

became feudal since a feud or estate was given for life and later made inheritable.149

The tenant of the feudal estate typically swore allegiance to and tendered military

service in exchange for protection promised by the feudal superior. This relationship

had nothing to do with common blood or descent from common ancestors.150

In the colonies, the colonists were viewed by the British aristocracy as property of

the realm by way of jus soli, since they were born on the property of the monarch.151

The children of peasants/bonded servants/serfs were also considered property of the

soil on which they were born since they inherited the bond of their father to the land

that they rented from the Lord of the Manor estate.152 Jus soli was not a principle

that applied in common law to the freeman class, but only to the indebted class and

its children.153 This principle also applied to the children of immigrants to England

who were deemed to be jus soli subjects of the Kingdom as they had been born on

the King’s land - their father’s foreign subjection was inapplicable to them.154 This in

essence implied that the child of an immigrant, born on the King’s land obtained

146

Kemp A The Rise of Western Civilization (2009) 138 [http://books.google.com.na] [accessed on

06 May 2014]. 147

http://h2ooflife.wordpress.com/jus-soli-origins [accessed on 22 January 2014]. 148

Scott, JB “Nationality: Jus Soli or Jus Sanguinis” The American Journal of International Law Vol.24

No.1 (1930) 59. 149

Ibid. 150

Id. at 60. 151

http://h2ooflife.wordpress.com/jus-soli-origins/ [accessed on 22 January 2014]. 152

Ibid. 153

Ibid. 154

Ibid.

26

English nationality irrespective of the fact that he/she could (also) have obtained the

foreign nationality of their father through jus sanguinis.

Aspan postulates that jus soli, commonly known as “birth right nationality”, is mainly

applied in developed countries seeking to increase their citizenry since the nationality

of a person is determined by the place of birth.155 Bertocchi states that jus soli is

generally the norm for common law countries whereas jus sanguinis is generally the

law in civil law countries.156

Kerber is of the opinion that the idea of jus soli is treated more liberally by the USA,

as children born on US soil to foreigners become citizens by birth,157 whereas for

example children born on French soil to foreigners may become citizens if they reach

the age of 18, have lived in France for five years and have committed no crime.

Birth on German soil and prolonged residence, by contrast, has no bearing on

German citizenship.158

Citizenship

In the emerging nation-states, the territory of the nation was its land and citizenship

was an idealised concept.159 Increasingly, citizenship related not to a person such as

a lord or count, but it rather related a person to the state on the basis of more

abstract terms such as rights and duties.160 In the Greek and Roman world the

rights of citizenship reflected the fact that political interaction was seen as taking

place within communities as opposed to between communities.161 Hereditary

nationality eventually gave way to an acquired nationalism.162 In contrast, the

155

Aspan op. cit. 156 Bertocchi op. cit. 6. 157

Kerber LK “The Meanings of Citizenship” Journal of American History Vol. 84 No. 3 (1997) 834. 158 Ibid. See Article 4 of the German Nationality Act of 22 July 1913 (Reich Law Gazette I p. 583 –

Federal Law Gazette III 102-1), last amended by the Act of 23 July 1999 (Federal Law Gazette I

pp. 1618 ff.) 159

Heater A Brief History op. cit. at 159. 160

Ibid. 161 Boll Multiple Nationality op. cit. at 65. 162

Habermas Citizenship op. cit. at 23.

27

modern concept of nationality has feudal European roots and is essentially related to

power over territory as well as natural persons.163

Habermas maintains that citizenship was never conceptually tied to nationality, but

that the concept of citizenship developed out of Rousseau’s notion of self-

determination.164 Everyone should be in a position to expect that all will receive

equal protection and respect as an individual, as a member of an ethnic or cultural

group, as a citizen. One may thus deduce that citizenship contains two essential

aspects, namely a functional and non-functional aspect.165 Flemming proposes that

the functional aspect refers to the legal relationship that exists between the

individual and the state, whereas the non-functional aspect refers to the individual’s

sense of cultural identity and community – his “nationality”. It is suggested that as

the importance of functional rights reserved for citizens increases, so will the need

for aliens (foreigners) to pursue citizenship also increase.166 This, according to -

Flemming,167 is, however, not resultant out of a sense of cultural affinity, but rather

out of a need to secure and ensure a material future.

Citizenship in a liberal state essentially embodies two types of relationship, one being

vertical and the other horizontal. The vertical relationship concerns the citizen and

the state, where the state provides protection to the citizen and the citizen owes the

most onerous duty to the state being military service.168 The horizontal plane

determines the relationship between citizens where a sense of community, sharing

loyalty, history and national character are developed. Kerber states that in liberal

tradition, rights are implicitly paired with obligations and the more citizenship is

experienced as an economic entitlement or a passive obedience to the law rather

than an active engagement in civic life, the harder it will become to distinguish

163 Boll op. cit. 61. 164 Habermas op. cit. 24. 165 Fleming MC “The functionality of Citizenship” Harvard Law Review Vol. 110, No.8 (1997) 1814

http://www.jstor.org/stable/1342045 [accessed: 20 May 2011]. 166 Ibid. 167

Ibid. 168 Id. at 1815.

28

between citizens and non-citizens.169 Flemming states that the Treaty of

Maastricht170 refers to the vertical relationship as “politico-legal” being called

citizenship, whereas the horizontal relationship is referred to as “historic-biological”

referring to the sense of belonging to a nation, also called nationality.171 Article 8(1)

of the Treaty states that every person holding the nationality of a Member State shall

be a citizen of the (European) Union.

It has been suggested that notions of citizenship rights emerged out of this spirit of

each person identifying strongly with the nation of their birth.172 Heater argues that

a modern type of citizenship is one which lets people participate in a number of

different ways,173 often understood to be a legal status. Citizenship is not a "be-all

end-all" relation, but only one of many types of relationships which a person might

have.174 The idea that participating in law-making is an essential aspect of citizenship

continues to be expressed by different thinkers. When there are many different

ethnic and religious groups within a nation, citizenship may be the only real bond

which unites everybody as equals without discrimination — it is a "broad bond" as

one writer described it.175 Citizenship may also be an ideal to be sought after and

practiced in different sites or domains according to Stokes.176

Klaaren supports the notion that four broad theories of citizenship may be identified,

namely cultural citizenship, membership citizenship, lawful status citizenship and

post-national citizenship. Cultural citizenship identifies a particular culture, whereas

membership citizenship draws a sharp distinction between the status of citizens and

non-citizens.177 Lawful status citizenship extends citizenship through law – in

169

Kerber op.cit. 834 - 835. 170 Maastricht Treaty Article 8(1) February 1992 http://www.eurotreaties.com/maastichtext.html 171 Fleming op. cit. 1818. 172

Taylor op. cit. 137. 173

Heater A Brief History op. cit. at 157. 174

Ibid. 175

Gross op.cit. xi - xii. 176

Stokes, G “Citizenship” in Galligan, B and Roberts, W The Oxford Companion to Australian Politics

(2008) Oxford Reference Online [ http://www.oxfordreference.com/views/ ] [accessed on 9 July 2013]

177 Klaaren, J “Citizenship” in Woolman, S and Bishop, M Constitutional Law of South Africa 2nd edition (2002) 60-4.

29

essence viewing all persons who are lawfully and permanently residing within the

country to be presumptively full members of the national community. Post-national

citizenship views all persons as entitled to human rights on account of their

identification as human beings.178

Alfonsi postulates that citizenship developed not just as a response to popular

pressure, but also as a consequence of regulation by the state of the standards of

living of the people and of the expectations that emerged in time.179 He further

maintains that “citizenship today means connection with one another, a coming

together, a search for collective points of reference, to protect individual rights.”180

Turner argues that citizenship is a juridical status that confers a specific socio-

political identity and therefore plays an important part in determining the

redistribution of economic resources within society.181

Jensen182 hypothises that modern citizenship was forged and exists in the

Westphalian international system,183 which is composed of modern states with

identifiable borders. Hassim opines that while citizenship creates a formal framework

for rights and obligations, it can also theoretically be understood to confer equality in

the public sphere, but in practice may be used to create insiders and outsiders in a

particular political system.184 By setting the limitations of citizenship,185 the state

establishes the conditions for full membership in the community, thus effectively

limiting the rights and access of foreigners.186 Although there are universalist

tendencies in citizenship laws, the application thereof is not uniform as permanent

178

Ibid. 179

Alfonsi The Emerging op. cit. at 56. 180

Id. at 58. 181

Turner Citizenship op. cit. at 229. 182

Jensen J “Introduction: Thinking about Citizenship and Law in an era of change.” in Law and Citizenship (2006) 4.

183 It is postulated by Henry Kissinger that the peace of Westphalia laid the foundations for the

“principles of a system of ‘international relations’“ as we know them to be in existence today.

Kissinger H World Order (2014) 26 & 27. 184

Hassim S “From Presence to Power: Women’s Citizenship in a New Democracy” Agenda No.40

Citizenship (1999) 7. 185

Only an individual can have citizenship – a minor or convicted criminal have defined nationality

without being citizens in any effective sense of the term. Heater Citizenship op. cit. at 249. 186

Ibid.

30

residents, for example, do not have the right to vote in local and national elections,

but they do have the same economic rights as other citizens.187 Hampshire argues

that admission to citizenship should be straight forward, “since (national) laws affect

non-citizen residents as much as citizens and there are no legitimate grounds on

which the former can be excluded from democratic decision making, while the latter

are included.”188

Nationality

From the above one may conclude that the early Roman idea of nationality involved

belonging to a group of persons, the group or nation being determined either by

lineage or geography.189 Nationality was not specifically linked to a political or legal

status.190 Nationality denotes informal membership in or identification with a

particular nation (which is not a synonym for country or state).191

Safran suggests that in the ancien régime of France prior to the revolution,

membership in a nation was defined in terms of a sharing of religion, social

relationships, duties, rights and cultural patterns.192 The leaders of the French

Revolution, however, introduced a new element namely that “the nation consisted of

all inhabitants of a territory who obeyed the law, paid taxes and performed various

other duties required of all citizens.”193 The nation was thus defined in purely

political terms and since these elements were protected and promoted by the state,

187

Stokes op. cit. In the South African case of Labri-Odam & Others v Member of the Executive

Council for Education (North-West Province) & Another 1998 (1)SA 745 (CC), 1997 (12) BCLR 1655 (CC) the court considered the claims of a number of teachers to be protected from employment

discrimination. The court protected the jobs of these permanent residents who were largely of

African origin, articulating a type of “lawful status” citizenship. 188

Hampshire J “Becoming Citizens: Naturalization in the Liberal State” in Calder G, Cole P and Seglow

J Citizenship Acquisition and National Belonging (2010) 80. 189

Boll Multiple Nationality op. cit. at 65. 190 Ibid. 191

Vonk O Dual Nationality in the European Union: A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four EU Member States (2012) 19.

192 Safran op. cit. 315.

193 Ibid.

31

it came to define the nation resulting therein that the concept of citizenship and

nationality became fused.194

Miller195 postulates that the modern idea of nationality is distinguishable from older

beliefs due to its emphasis on collective self-determination. If we say that a set of

people compose a nation we are saying something about how they conceive of

themselves. “National identities can remain unarticulated and yet still exercise a

pervasive influence on people’s behaviour.”196

Macklin opines that nationality, or legal citizenship, is a status and not an on-going

performance.197 Nationality does not impose a juridical performance requirement but

simply refers to the legal status of membership held by an individual in relation to a

territorial nation state.198

Hoffman postulates that “historically a national identity could not become explicit

without the divisive institutions of the state.”199 As state sovereignty developed into

a power that is impersonal and abstract, the territorial “container” of this power

assumes an explicit national form, resulting therein that state sovereignty in its

modern form allows no competitors.200

Nationality may be acquired either by birth or soil (jus soli) or by blood or descent

(jus sanguinis). It is deemed a universal principle that every person has the right to

a nationality, which principle is enshrined in the constitution of most nation-states.

Scott claims that there seems to be no single principle which the nations appear to

be willing to accept as a test of their laws on the matter of nationality, as some

prefer jus sanguinis, others jus soli, or a combination of both in differing degrees.201

194

Ibid. 195

Miller On Nationality op. cit. at 17. 196

Id. at 27. 197

Macklin A “Exile on Main Street: Popular discourse and Legal Manoeuvres around citizenship” in

Laws and Citizenship (2006) 23 and 29. 198

Ibid. 199

Hoffman State and Nation op. cit. at 50. 200

Ibid. 201

Scott op. cit. 58.

32

The acquisition of nationality either through birth or blood would be less complex to

determine if states would simply employ either the one or the other principle.

From the aforegoing historical perspective, one may conclude that nationality is in

essence determined either by birth and/or bloodline. Nationality embodies a cultural

heritage and is often described as a spiritual and/or emotional bond to a particular

culture, heritage, language and people or tribe. Nationality therefore mainly pertains

to ancestral affiliation and is accordingly not influenced by absence from the state.

Citizenship, on the other hand and in historical perspective, is mostly determined by

valid domicile in and the acceptance of certain civic duties towards a particular state.

Citizenship in essence thus refers to a person’s political and civic participation in a

specific state. Citizenship therefore confers the right to reside, vote and to be

politically active in a state and as such is influenced by absence from the state in

question.

Presuming and postulating that nationality and citizenship are clearly distinct

concepts pertaining to different aspects of a person’s allegiances, is it then correct to

refer to a person possessing either dual nationality or dual citizenship? The next

chapter addresses this question in greater depth to determine how a person’s dual or

multiple status, if possible, is to be named.

33

CHAPTER THREE

Nationality and International Law

From the discussion above, it may be seen that citizenship does not automatically

reflect nationality. Nationality describes the specific, primary relationship between

the state and an individual, giving rise to particular rights and obligations in relation

to that individual on the plane of the law of nations.202 It may thus be argued that

nationality does not give rise to citizenship rights per se. The conditions on which

citizenship is acquired are essentially regulated by municipal law.203

Borchard states that the history of the legal relation between the state and

individuals, its own citizens and aliens, is largely a history of transition from the

system of personal law(s) to the territoriality of law. In ancient Rome, only Roman

law was universal and its enjoyment was limited to Roman citizens only.204 On the

other hand, the Germanic peoples knew no such system of personal laws as it was

their universal custom that the law of the conquering tribe replaced that of the

conquered.205 Aliens had no rights and were therefore under the protection of and

governed by the law of their protector. In the later Middle Ages and with the

development of agriculture came greater permanency of habitation on the part of the

Germanic nations.206

When considering that, under Roman law, a Roman citizen was entitled to all rights

of a citizen, it seems harsh that a peregrinus was debarred from certain legal rights.

This position, however, changed through the creation of a specific praetor

peregrinus, essentially a Roman magistrate, who was mainly responsible for handling

legal disputes among peregrini or between a Roman and a peregrinus.207 The

202

Boll Multiple Nationality 71. 203

Id. at 75. 204

Borchard Diplomatic Protection 4. 205

Id. at 5. 206

Op. cit. 5. 207

Cilliers et al Herbstein and Winsen 391.

34

peregrine praetor not only settled disputes as between Romans and peregrines, but

also created general rules in the form of edicts, resulting in the formation of a

completely new system of private law that was dubbed ius gentium – law “common

to all mankind”.208 An incola, being a person who is either domiciled or resident in

the area of the court’s jurisdiction, on the other hand, essentially possessed the

same private rights as a citizen, thus enjoying the same advantages as natural born

citizens.209 An incola may thus either be a citizen or a domiciled foreigner, whereas a

peregrinus is neither so domiciled nor resident in the court’s jurisdictional area.210

History, however, shows that the lack of loyalty among emigrant colonists was an

early indicator of the decay of the quality of civic virtue which had supplied the moral

underpinning for a successful polis.211 Individual values were replacing

communitarian values and the sense of citizenship was put under strain by ever

widening social differences.212 Heater is of the opinion that vague ideas of human

unity can be traced through many generations of Greek thought and consequently

the concepts of world citizenship and the world state were born in the Western world

as a result of Greek philosophical speculation.213

Heater advances that although the Christian ambition to become a global unifying

force was shattered by the Reformation, a sense of international community could

not be entirely dispensed with.214 Heater acknowledged that although there is much

208

Trnavci G “The meaning and scope of the Law of Nations in the context of the Alien Tort Claims Act

and International Law” in: The Law of Nations Vol.26:2 [2005] 199. 209

Cilliers et al Herbstein and Winsen at 394. In terms of South African and Namibian law, the terms

incola and peregrinus are of importance with regard to not only jurisdiction, but to other procedural matters as well. Herbstein and Winsen at 392, states that the courts have not clearly

defined the terms incola and peregrinus, but some guidance was given in Magida v Minister of Police 1987 (1) SA (1) at 8D In terms of modern law the intention to remain permanently or

indefinitely in addition to residence constitutes an essential concept of domicile. 210

Id. at 394. In terms of South African law (and by association also in terms of Namibian law) an

incola is a person who is either domiciled or resident in the area of the relevant court’s jurisdiction

but not in respect of the whole of South Africa. Prior to Union in 1910, a person domiciled or resident in one colony was considered a peregrinus in the other three colonies and as such liable to

be arrested or to have his property attached to found or confirm jurisdiction 211

Heater World Citizenship op. cit. at 3. 212

Ibid. 213

Id. at 13. 214

Id. at 85.

35

debate in literature about the harmonising force of law, there nevertheless remained

a powerful desire to codify the rights and duties of states and so to consolidate them

as political and legal entities.215

Although nations usually came to occupy well defined territories upon attaining

civilisations, they continued for a long time to be regarded as a collection of tribes,

clans and families rather than as a single people subject to territorial jurisdiction.216

Generally, the history of modern international law is said to have started in the

seventeenth century, as the ancient Greek city states had already concluded treaties

with each other on such matters as, for example, how best to treat prisoners of

war.217 In the year 1648, the Peace of Westphalia was concluded to mark the end of

the Thirty Years’ War and also at the same time to confirm an earlier arrangement

emanating from the 1555 Peace of Augsburg.218 The 30-Years-War was, according

to Borchard, an epoch making event in the history of international law from which

emerged the principle of territorial independence as opposed to imperialism. 219

Dugard is of the opinion that the roots of international law are, however, to be found

in the ancient histories of the Egyptians, Jews, Greeks and Romans.220 It is believed

that the early writers of international law came from Spain and Italy, but Grotius is

nevertheless acknowledged to be the father of international law.221 Trnavci writes

that the ancient Roman jurists dealt with two types of law that transcended the law

of the Roman empire, namely the law of peoples (ius gentium) and natural law (ius

naturale).222 The Roman jurist Gaius distinguished ius gentium from ius civile (for

use by Romans only) stating that every community governed by laws and customs

uses partly its own law and partly laws common to all mankind. 223 The law which a

215

Heater World Citizenship op. cit. at 85. 216

Flournoy Dual Nationality op. cit. at 546. 217

Klabbers J “International Law” (2013) 4. 218

Id. at 5 The effect would be that Europe would be divided into a number of territorial units and

that each of these units could decide which religion to adopt, the result being the creation of sovereign states and therewith the birth of the modern state system.

219 Borchard Diplomatic Protection op. cit. at 7. Also see Kissinger World Order op. cit. at 30.

220 Dugard International Law op. cit. at 7.

221 Ibid.

222 Trnavci op. cit. 200.

223 Id. at 201.

36

people make for its own government belongs exclusively to that state and is called

the civil law (ius civile), but the law which natural reason appoints for all mankind is

called the law of nations because all nations make use of it.224

Donner maintains that as the sovereign power of the prince was subject to no law

other than the laws of God and nature, which alone were binding on princes,

therefore the sovereign State was considered to have a legal personality of its

own.225 It was this artificial person, the sovereign, on whom the rules of the ius

gentium were binding and who participated in international intercourse.226 Over

time, as the internal sovereignty was transferred from the king to the people, so the

international personality of the sovereign ruler was transferred to the sovereign

people.227 Trnavci, however, submits that the Roman notion of ius gentium is not

identical to the modern meaning of international law.228 Ius gentium was not law

regulating relationships among independent states, but rather internal or national

Roman law that regulated the relationships among private persons.229

Donner opines that the doctrine of equality of sovereign States essentially followed

on from the theoretical construction of the legal personality of the ruler.230 The

international community was in this way composed of sovereign states, the

requirement for statehood being the existence of a sovereign exercising supreme

authority internally and representing his subjects externally.231 Regardless of the

size of the State, each one is considered to be the equal of the other, resulting

therein that the international community of the modern world is based on the

territorial sovereignty of States and their equality of rights.232 According to Klabbers,

224

Trnavci op. cit. 201. 225

Donner R The Regulation of Nationality in International Law (1994) 3. 226

Id. at 3. 227

Id. at 5. 228

Trnavci op. cit. 202. 229

Ibid. 230

Donner op. cit. 4. 231

Id. at 5. 232

Ibid.

37

international law grew out of the interactions of states and the commentaries of

learned observers.233 Benhabib holds forth that “this emergent body of law is ‘a legal

order’ even if it has no specific point of organisation in the form of law-producing

institutions.” 234 It is further postulated that the boundaries of global law are not set

by national borders but rather by “invisible” professional communities and social

networks.235

As a sovereign State enjoys exclusive sovereign rights within its territory, it follows

that other states have a duty not to interfere in its internal affairs. The fundamental

rule of the international regime is that states should look after their own and only

their own.236 Every state is bound to respect the independence of every other

sovereign state and therefore the courts of one country will not sit in judgment on

the acts of the government of another state, when these acts were done within its

own territory.237

According to Dugard, international law may be defined as a body of rules and

principles which are binding upon states in their relations with one another.238 At the

end of the 19th century, the central topics in international law that emerged included

the law of treaties, the law of responsibility and acquisition of territory and dispute

settlement.239 Early international law mainly concerned itself with states only, but

since 1949 it has been accepted that international organisations such as the United

Nations (UN) and its specialised agencies enjoy international legal personality.240

There is, however, no central body in international law with the power to enact and

enforce rules binding upon all states.241 The rules of international law are mainly to

be found in agreements between states and in international custom, and therefore it

233

Klabbers op. cit. 5. 234

Benhabib S “Twilight of Sovereignty or the Emergence of Cosmopolitan Norms? Rethinking

Citizenship in Volatile Times” in Faist T and Kivisto P Dual Citizenship in Global Perspective 2007

257. 235

Ibid. 236

Boll Multiple Nationality op. cit. at 11. 237

Donner op. cit. 7. 238

Dugard op. cit. 1. 239

Klabbers op. cit. 9. 240

Dugard International Law op. cit. at 1. 241

Id. at 3.

38

may be stated that international law is essentially a horizontal system in which

lawmaker and subject are legal persona242 relating to one another on the basis of

equality. Although the International Court of Justice (ICJ) at The Hague may be

used to settle disputes between all states in the world, international courts, however,

have jurisdiction only over those states that have consented to their jurisdiction.243

From the above it may thus be concluded that the two major sources of international

law, custom and treaty, both work on the assumption of a regular, formalised

contact between regular, formalised entities such as states.244 The notion is that

states act through formally designated organs and representatives, come to some

form of agreement and that such agreements should have legal effect.245 Klabbers

postulated that traditionally anything states consented to, as law, would become

recognised as a source of international law.246

Bisschop holds forth that in international law “nations” are an unknown quantity,

being a conception of municipal law and denoting a group of persons who through

racial, religious or economic ties are bound together to follow a common pursuit.247

A state, being a political conception, may comprise of a number of nations, as for

example Great Britain which consists of the English, Irish, Scotch and Welsh nations.

Accordingly a national (individual) of a State is thus internationally only known

through the State to which he/she belongs. Bisschop concludes that an individual is

thus recognised as a member of the world community, and for organisational

purposes, is labelled with nationality as belonging to a certain group or state among

the various states into which mankind is divided.248

242

Dugard Ibid. 243

Id. at 4. 244

Klabbers op. cit. 37. 245

Ibid. 246

Id. at 40. 247

Bisschop WR “Nationality in International Law” American Journal of International Law Vol. 37 No.2

(Apr. 1943) 320. 248

Id. at 323.

39

Protection of one’s person and property against internal or external assault is the

primary function of the state on behalf of its citizens.249 A stateless person is

therefore at risk, because he/she has no right to request the assistance with regard

to the authority and power of a state to defend him/her against any enemies. The

legal requirements250 for “state protection” have varied over the ages and still do as

between different countries.

It is asserted that as a principle among the attributes of sovereignty is the right of a

government to decide who shall be deemed a citizen (national).251 Borchard states

that it is by virtue of the personal relationship involved in sovereignty and citizenship

that the state may declare its laws binding on its citizens even when they are abroad

and by virtue whereof its obligations to those non-resident citizens continues to

exist.252 The framing of nationality legislation is therefore effected by each state

having complete legislative capacity within its own territory yet being subject to

international law.253 A state thus has a right to exercise diplomatic protection on

behalf of a national – it is, however, under no obligation or duty to do so254 - and

acts “not as an agent but as the protector of the interests of its nationals while they

are abroad.”255

Diplomatic Protection

With the intensification of travel and migration, and increase in time that individuals

spend outside their country of nationality and primary residence, diplomatic

protection for the individual becomes an important right in a hyper-mobile world.256

Diplomatic protection’s very purpose, according to Forcese, is to protect nationals

249

Heater Citizenship op. cit. at 250. 250

Ibid. Ever since the Greek city-state the four basic requirements have been participation in the

political process, involvement in the administration of the law, enrolment in military service and the payment of taxes.

251 Borchard Diplomatic Protection op. cit. at 486.

252 Id. at 8.

253 Donner op. cit. 10.

254 Dugard International Law op. cit. at 290.

255 Leigh Nationality op. cit. at 455

256 Stasiulis, D and Ross, D “Security, Flexible Sovereignty and the Perils of Multiple Citizenship” in

Citizenship Studies 10:3 (2006) 344.

40

abroad, sometimes in circumstances where their connections to the protecting state

have become tenuous.257 As a result of the unequal recognition of dual nationality

by states, the concept hereof creates significant difficulties for governments seeking

to protect their citizens.258 The difficulties stem largely from the unsettled state of

international law in relation to diplomatic protection of dual nationals.259 “The

effective nationality principle might therefore best be viewed not as a standing

requirement that must coexist at the time diplomatic protection is asserted by the

protecting state, but rather as a means of evaluating whether a nationality was at

any past juncture properly granted - the effective nationality principle being a

threshold test.”260

Forcese is of the opinion that diplomatic protection should always be available to

those accorded nationality by jus soli or jus sanguinis.261 This remains true even if

the connection between the individual and the protecting state later becomes

tenuous, as no principle of international law bars a person from acquiring a second

nationality through, for example, naturalisation.262 The question arises whether an

individual who possesses dual nationality may be represented diplomatically, and if

so, whether by both or only one of his/her national States.263 According to Leigh a

number of solutions have been tried - depending on the situation – such as to give

effect to the nationality at birth; to give effect to the nationality used by the

individual; and not to permit representation by one state of nationality against

another state of nationality.264

Forcese265 suggests that international law has traditionally said little about

nationality, although the Hague Convention266 itself specifies that nationality

257

Forcese G “Shelter from the Storm: Rethinking Diplomatic Protection of Dual Nationals in modern

International Law” in: The George Washington International Law Review (March 2005) 484. 258

Id. at 491. 259

Ibid. 260

Forcese supra at 484. 261

Id. at 487. 262

Id. at 488. 263

Leigh Nationality op. cit. at 459. 264

Ibid. 265

Forcese op. cit. 481.

41

decisions need not be recognised where these are inconsistent with “international

conventions, international custom and the principles of law generally recognised with

regard to nationality.” Ultimately it is, however, for international law to determine

whether nationality has been conferred in a manner not inconsistent with

international law for the purpose of diplomatic protection.267 The ruling in the

Ambiati 268case, according to Leigh, leaves no doubt that the rule of effective

nationality essentially consists of three elements, all three of which must be present

at the time when diplomatic protection is sought.269 These three elements are (1)

that the claimant is a national at the date of the injury, (2) that the claimant is a

national at the date of the claim; and (3) that the link of nationality has remained

uninterrupted during the intervening period.270 Naujoks271 advances that in 1955,

the International Court of Justice (ICJ) had decided that “in so far as a genuine link

exists with both states of nationality, then the country of domicile is entitled to

protect that person’s interests”.272 The ICJ’s approach to diplomatic protection of

dual nationals seems particularly reasonable in light of the evolution of the concept

of erga omnes.273 An obligation erga omnes is a principle of international law in

which all states can be held to have a legal interest in their (dual) national’s

protection.274

Stasiulis and Ross advance that diplomatic protection is founded on an imagination of

adversarial relations between states in order that protection occurs by one state

against another state.275 In the global war on terror, collaboration therefore occurs

266

Convention of Certain Questions Relating to the Conflict of Nationality Laws, April 1930 art 1

[referred to as The Hague Convention]. 267

Dugard International Law op. cit. at 285. 268

United States v Venezuela (The Ambiati case) in JB Moore, History and Digest of International

Arbitrations to which the United States has been a Party Vol. III at 2347. 269

Leigh Nationality op. cit. at 456. 270

Ibid. 271

Naujoks D “Dual citizenship The discourse on ethnic and political boundary-making in Germany”

Focus Migration 2. 272

Lichtenstein v Guatemala 1955 (Nottebohm decision) ICJ Reports 23, p. 20 ff. 273

Dugard supra at 278 & 279. 274

The Institute of International Law went even further in resolving that the international obligations

to ensure the observance of human rights is an erga omnes obligation. 275

Stasiulis and Ross op. cit. 344.

42

among nation-states against a non-state entity and suspected members of this non-

state entity, such as for example al-Qaeda.276

International conventions pertaining to nationality

In the aftermath of World War II, numerous treaties were signed extending the

protection of international law to individuals277 and the administration of the

international community of today developed out of that which preceded it.278 The

League of Nations, being largely “Eurocentric” in its membership and its

concerns,279 was set up under the Covenant which comprised the first 26 articles of

the Peace of Paris,280 establishing a machinery of collective security with the

sovereign state as basis. From the provisions of the Covenant it becomes clear that

international law was excluded in matters falling within the reserved domain being

the domestic jurisdiction of each member state, as international law only governs the

relations between independent states.281 The United Nations differs in many

respects from the League of Nations as it is an organisation of sovereign states being

parties to the Charter which is in the form of an international treaty.282

In international law the basic principle is thus that states have the right to determine

the rules which would govern the attribution of their own nationality. Early

nationality law was, according to Spiro, constrained by the interests of states vis-a-

vis each other and not by the interests of individuals.283 International commissions

acting under special treaties or rules of their own often provide for special methods

of establishing citizenship/nationality and have had occasion to pass upon various

forms of evidence of citizenship/nationality. The mere exercise of the voting

276

Ibid. 277

Determining inter alia how nationality and citizenship should and would be governed between

states. 278

Stasiulis and Ross op. cit. 4. 279

Dugard International supra at 11. 280

Treaty of Peace between the Allied and Associated Powers and Germany signed at Versailles on

28 June 1919 as quoted in Donner op. cit. 9. 281

Donner op. cit. 10. 282

Ibid. 283

Spiro A New International op. cit. at 698.

43

privilege in a state has been held by international commissions neither to confer

citizenship nor to deprive the foreigner of his alienage.284

International human rights have, however, taken on overwhelming significance as

they have replaced national rights.285 Kerber further states that “the rights and

claims of individuals are legitimated by ideologies grounded in a transnational

community through international codes, conventions and laws on human rights,

independent of their citizenship in a nation state.”286 Turner opines that “human

rights are enjoyed by individuals by virtue of being human and as a consequence of

a shared vulnerability”.287 It is observed that a majority of states have become

signatories to international documents, which determine the regulation of human

rights, of which nationality/citizenship forms but one aspect.288

The Universal Declaration of Human Rights was proclaimed in December 1948,

the main aim being the equality of rights and law. Donner postulates that the

Declaration was proclaimed as a common standard of achievement for all peoples

and all nations.289 The Declaration unequivocally asserts that “all human beings are

born free and equal in dignity and rights”.290 It further states in Article 15 that “no

one shall be arbitrarily deprived of his nationality nor denied the right to change his

nationality”291. Its moral authority is enhanced by the universality of its acceptance

by members of the United Nations and although not legally binding on states, the

content of the Declaration has been included in a number of constitutions drafted

after 1948, such as, for example, the Namibian and South African Constitutions.292

Spiro states that it is regrettable that with this Declaration the “discourse shifted

away from an order-centered orientation and instead recognised the individual’s

284

Borchard Diplomatic Protection op. cit. at 490 - 491. 285

Kerber The Meanings op. cit. at 851. 286

Ibid. 287

Turner Citizenship op. cit. at 234. 288

Donner op. cit. 131. 289

Id. at 191. 290

Kerber supra at 852. 291

Orfield LB “The legal effects of dual nationality” The George Washington Law Review (1949)

Vol. 17. No.4 434. 292

Donner supra at 191.

44

interest in nationality to be a matter of international law”.293 In essence the

Declaration did not place an obligation on any state to grant an individual a

nationality.294

The African Charter of Human and Peoples Rights is recognised as a regional

“pact” and was adopted in June 1981 at a meeting of the Organisation of African

Unity.295 The Charter contains no provisions for the right to nationality, but its Article

18 does provide that the family shall be the natural unit and the basis of society and

as such shall be protected by the state. Under the same Article, mention is made

that the state shall ensure the elimination of every discrimination against women as

well as ensure the protection of the rights of women and her children, as stipulated

in international (writer’s emphasis) declarations and conventions.296

The European Union has grown steadily since the modest proposal in 1950 for the

fusion of the French and German coal and steel industries.297 According to Aust, the

European Coal and Steel Community (ECSC), establishing a common market in coal

and steel, came into being in 1952 with France, Germany, Italy and the Benelux

countries being the initial members.298 The Maastricht Treaty made provisions for

the amendment of the treaty that established the European Economic Community

(EEC) to establish the European Community (EC), more commonly referred to as the

European Union (EU)299 and was signed into effect on 7 February 1992. The

fundamental aim of the EU is to bring its member states together economically,

socially and politically and as a result thereof has become a complex regional

organisation.300 Although the EU has a certain degree of supranational power,

293

Spiro A New International op. cit. at 710. 294

Ibid. 295

African Charter of Human and Peoples Rights adopted in Nairobi on 27 June 1981 [accessed on

20/09/2014 at www.humanrights.se/ /African-Charter-on-Human-and-Peoples-Rights ] 296

Article 18(3) 297

Aust A Handbook of International Law (2010) 431. 298

Ibid. 299

The Maastricht Treaty - Provisions amending the Treaty establishing the European Economic

community with a view to establishing the European Union, Maastricht, 7 February 1992 [accessed

on 6/02/2014 at www.eurotreaties.com/maastrichteu.pdf]. 300

Aust op. cit. at 433.

45

through its governance treaties, the EU is not a federation.301 Under C, Part Two –

Citizenship of the Union, - provision is made for every person holding the nationality

of a Member State to also be a citizen of the Union. Every citizen shall further also

have the right and freedom to move about freely within the territory of the Member

States limited and subject to conditions laid down in this Treaty.

Article 8b interestingly provides for every citizen of the Union residing in a Member

State of which he/she is not a national, to have the right to vote and to stand as a

candidate at municipal elections in the Member State in which he/she resides and

under the same conditions as nationals of the Member State. Thus a national of

Austria residing in Denmark may vote and stand for municipal elections in Denmark.

Article 8c stipulates that every citizen of the Union shall in the territory of a third

country in which the Member State of which he/she is a national is not represented,

be entitled to protection by the diplomatic or consular authorities of any Member

State and on the same conditions as nationals of that State. In practice this means

that a Danish national visiting Namibia should be afforded diplomatic or consular

protection by the German Consulate in Namibia, as Denmark has no representation

in Namibia.

A number of developments in international law illustrate an increasing trend towards

the recognition of citizenship as a human right, most notably the European

Convention of Nationality of 1997,302 which is a Convention of the European

Council. The objective of the Convention303 is to establish the principles and rules

relating to the nationality of natural persons and rules regulating military obligations

301

Aust Ibid. 302

Council of Europe European Convention on Nationality 1997, ETS 166.

http://conventions.coe.int/Treaty/en/Treaties/Html/166.htm 303

The Convention entered into force on 1 March 2000. Signatories who have ratified their signature

and in whose State territory the Convention has come into force are Austria, Denmark, Finland,

Germany, The Netherlands, Portugal and Sweden. France, Italy and Russia have signed but not

ratified the Convention. States that have not signed include Belgium, Ireland, Monaco, Spain, Switzerland and the United Kingdom. None of the Non-member states, including Canada, the USA

and the Holy See, have signed the Convention. [Information obtained from: http://conventions.coe.int/Treaty/Commun/ accessed on 6 February 2014].

46

in cases of multiple nationality, to which the internal law of State Parties shall

conform.304 The Convention shall apply to the territory or territories as specified by

the State who is a signatory hereof and has deposited its instrument of ratification

/acceptance /approval or accession.

In its preamble, the Convention states that “in matters concerning nationality,

account should be taken both of the legitimate interests of States and those of

individuals”, as well as “desiring to avoid discrimination in matters relating to

nationality”. The Convention further defines nationality as “the legal bond between a

person and a State and does not indicate the person’s ethnic origin” and multiple

nationality is defined as “the simultaneous possession of two or more nationalities by

the same person”. With regard to multiple nationalities, the Convention provides

that States party to the Convention shall allow “children having different nationalities

acquired automatically at birth to retain these nationalities”. Each State shall

furthermore also facilitate the recovery of its nationality by a former national who

lawfully and habitually resides on its territory.305

Articles 3 and 9 respectively regulate that each State shall determine under its own

law who are its nationals and shall further also be guided by the principle of non-

discrimination between nationals. In Article 14 it is determined that each State Party

shall allow children having acquired different nationalities automatically at birth, to

retain these nationalities. The same provision is also applicable to those nationals

who automatically acquired an additional nationality by virtue of marriage.

Although the European Convention on Nationality is one of the few documents where

only the concept of nationality is referred to, there is, however, one Article where the

principles of nationality and citizenship have been combined. Chapter VI regulates

state succession and nationality and Article 18 thereunder determines the principles

in relation thereto. Provision is made that in matters of nationality in cases of State

succession, each State Party concerned shall take account particularly of:

304

Article 1 and Chapter VII, Article 21 of the European Convention on Nationality. 305

Article 9.

47

The genuine and effective link of the person concerned with the State;

(relates to nationality)

the habitual residence of the person concerned at the time of State

succession; (relates to citizenship)

the will of the person concerned; (pertains to free election/choice and

therefore relates to citizenship)

the territorial origin of the person concerned (relates to nationality).

The Namibian Citizenship Act306 regulates the acquisition or loss of Namibian

citizenship. In terms of Section 2 of the Act, one may become a Namibian citizen by

descent, marriage, registration or naturalisation. It is submitted that it is a misnomer

to become a citizen by descent – one may claim nationality by descent if nationality

of the State in question is determined by jus sanguinis. In terms of Article 15 (1) of

the Namibian Constitution, one becomes a Namibian national by birth. The Article

states that children shall have the right from birth to acquire a nationality. In terms

of Article 4, a person shall be a Namibian citizen307 by birth or descent if either the

father or mother or both had been Namibian citizens at the time of birth of such

person. Namibia thus follows mixed principles in determining nationality namely jus

soli (birth) and/or jus sanguinis (descent).

Domicile

It is settled in law, writes McEleavy, “that the acquisition of a domicile of choice is no

mere inclination arising from a passing fancy or is thrust upon a person by an

external but temporary pressure.”308 According to Bauder the term domicile has its

roots in the Latin noun domicilium which can be translated as household, home or

306

Act 14 of 1990 [ www.parliament.gov.na/acts_documents/163_act_14_of_1990.pdf ]. 307

The Namibian Constitution [www.gov.na/.../Namibia_Constitution ] uses the terms “national” and

“citizen” interchangeably. It would have been more appropriate to state that persons may claim Namibian nationality on grounds of birth or descent and not refer to same a citizenship, which is

an elected choice made by a national of another country or state to become a member (citizen) of another country or state.

308 McEleavy P “Regression and Reform in the Law of Domicile” The International and Comparative Law Quarterly Vol. 56 No. 2 (April 2007) 455.

48

residence.309 Morse states that the “liability of a defendant to be sued before a

Roman forum was limited to the time when he happened to be resident in Rome.”310

It is suggested that the laws of Rome always yielded to those of the lex originis.

According to Morse “the consequences of domicile had an operation similar to

citizenship.”311 Bauder argues that it may be deduced that “the principle of domicile

refers to citizenship based on effective residence since a person is a citizen of the

polity in which he/she resides, independent of ancestry, location or birth.”312

Taking the above into consideration, domicile may therefore be defined as the place

where a person usually resides (permanent home) with the fixed intention of

remaining there and to which, whenever absent therefrom, he/she has the intention

of returning.313 Historically when people were principally attached to the soil,

domicile or the permanent home was the test and criterion for status, both civil and

political.314 Since the late Middle Ages, according to the common law theory of

statutes, a person’s legal relations depend on his domicile.315 To the Dutch jurists of

old, domicile seems to have meant actual permanent or indefinite residence.316

The concept of domicile is, furthermore, of considerable importance in a number of

areas of law. The place of residence, for example, is an important criterion for

taxation purposes and Bauder opines that in legal cases when courts need to decide

on the dominant nationality of a person with dual status, domicile plays an important

role.317 Essentially the law of domicile rests on two principles, firstly that everyone

shall have a domicile at all times, and secondly that each person should have one

and only one domicile at any time. “Domicile is an artifice of the law and not an

expression of fact”.318 Domicile is a “connecting factor” or link between a person and

309

Bauder H “Domicile citizenship, human mobility and territoriality” Progress in Human Geography

Vol. 38(1) (2014) 92. 310

Morse A Treatise op. cit. at 23. 311

Ibid. 312

Bauder supra at 92. 313

Domicile Act, Act 3 of 1992 www.justice.gov.za/legislation/acts/1992-003 314

Borchard Diplomatic Protection op. cit. at 555. 315

Apathy Domicilium. 316

Cilliers et al Herbstein and Winsen op. cit. at 391. 317

Bauder supra at 95. 318

Forsyth C Private International Law 5th ed. (2012) 133.

49

the legal system or rules that will apply to him/her in specific contexts. There are

essentially three types of domicile:

Domicile of origin is the domicile that every person acquires at birth. A

legitimate child born during the lifetime of its father has its domicile of origin

in the country in which the father is/was domiciled at the time of the birth.

This is simply a domicile that is assigned by operation of law for reasons of

efficacy.319

Domicile of choice is acquired by residing in a country with the intention of

continuing to do so permanently or indefinitely. Generally, where a person

abandons their domicile of choice in a particular country but does not acquire

a new domicile elsewhere, the domicile of origin will revive and continue to

govern his/her legal position until a new domicile of choice or of dependency

is acquired.320

According to Cronje and Heaton, two requirements must be met before a

domicile of choice can be acquired, namely the person must actually settle at

the particular place (factum) and must secondly have the intention of

residing permanently at that place (animus).321

Domicile of dependency arises in respect of children under the age of 21

years, married women and mentally disordered persons. Their domicile will

generally be the same as, and will change (if at all) in accordance with, the

domicile of the person on whom they are deemed to be legally dependent.322

Nationality as a connecting factor was, according to Donner, introduced by the

French Civil Code of 1804 which provided that the status and capacity of a

Frenchman is to be decided by his nationality regardless of whether he is domiciled

319

Cronje DSP and Heaton J The South African Law of Persons 4th ed. (2011) 42. 320

Domicile and Habitual Residence, Section 9 p 4.

www.lawreform.ie/_fileopload/.../wpBabitualResidence.htm [accessed on 8 May 2014]. 321

Cronje & Heaton supra at 43. 322

Domicile and Habitual Residence Section 10 p 4.

50

abroad.323 Before the Civil Code, domicile had been the principle determinant of

status throughout Europe. The question whether domicile could be equated with

citizenship for the purposes of diplomatic protection was dealt with in the Laurent324

case, where it had been decided that the law of war recognises that in certain cases

an individual may acquire the character of the country in which he is resident.

Donner further argues that the decision in the Laurent case was defective and the

only instance in which domicile would determine nationality was where the person

claimed or owed a double allegiance.325 In the Anthony Barclay case, cited by

Donner, it was reasoned that “the subject or citizen of one State domiciled in another

acquires, in some respects, privileges and incurs liabilities distinct from those

possessed in right of his original birth or citizenship. But he still remains the subject

or citizen of the state to which he originally belonged.”326

According to Kruger and Verhellen,327 both common and civil law countries most

recently use the criterion of “habitual residence”. Similarly, the conventions of the

Hague Conference on Private International Law almost always refer to “habitual

residence”, rather than domicile or nationality.328 It is, however, widely agreed that

it is the lex fori which determines where a person is domiciled no matter what the lex

causae might be.329

From the above discussions, it can be concluded that nationality in essence

represents a person’s political status by virtue of which allegiance to some particular

country is owed, whereas domicile connects to one’s civil status and provides the law

323

Donner op. cit. 6. 324

Messrs T and B Laurent v. United States (Dec 1854) Reports of International Arbitral Awards Vol.

XXIX pp. 11 – 25. A claim was brought by British-born subjects who had settled in Mexico and from whom, during the Mexican War of 1847, United States forces had confiscated money to which

the claimants had had legal title and for this they claimed compensation.

http://legal.un.org/riaa/cases/vol_XXIX11-25.pdf [accessed on 23/09/2014] 325

Donner supra at 38. 326

Id. at 39. Anthony Barclay v, Unites States, No. 5 (1891) in Moore, JB History and Digest of the International Arbitrations to which the Unites States has been a party Vol. III 1898.

https://archieve.org/stream/historyanddiges01statgoo#page/n60 [accessed on 03/10/2014] 327

Kruger T and Verhellen J “Dual Nationality = Double Trouble?” Journal of Private International Law Vol. 7 No. 3 (2011) 604.

328 Ibid.

329 Forsyth op. cit. 135.

51

by which one’s personal rights and obligations are determined. It thus follows that a

person may be a national of one country but be domiciled in another. The general

rule that has been practically uniformly adopted is that domicile neither confers nor

forfeits citizenship.330

Bauder expresses the opinion that domicile can serve as a citizenship principle as it

presents a practical alternative for reconfiguring formal citizenship to include

populations that are mobile across borders.331 It is postulated by Bauder that

domicile has been called the “missing link” that could be an alternative premise for

citizenship, as domicile-based citizenship could be granted to people independently

of the place and community of birth.332 A person would not be bound for life to a

particular territory, but what would count is the intention to stay permanently and if

the intention changes, then that particular citizenship would “expire”, since

“maintaining the citizenship of a territory in which one no longer resides defies the

very logic of the domicile principle.”333

It may be stated that nationality rather than citizenship is a determining factor with

regard to the operation of international law. From the numerous sources mentioned

above, it becomes clear that, although the term “nationality” and “citizenship” are

used inter-changeable, their purpose and meaning are by no means similar to

warrant such inter-changeability. Margiotta and Vonk question that if nationality is

primarily perceived as a legal bond between a person and a certain state, then why

is it not possible to maintain legal bonds with more than one state?334 It is argued

that many people possess various non-state loyalties which can conflict with state

loyalty, yet no one would argue that these loyalties are incompatible with being a

citizen.335 Naujoks states that, according to private international law, the principle of

effective citizenship means that the applicable law is that of the country to which a

330

Borchard Diplomatic Protection op. cit. at 558. 331

Bauder op. cit. 93. 332

Ibid. 333

Id. at 95 and 96. 334

Margiotta C and Vonk O “Nationality Law and European Citizenship: The Role of Dual Nationality”

Robert Schuman Centre For Advances Studies EUI Working Papers RSCAS 2010/66 2. 335

Ibid.

52

person has an effective tie – the country of normal residence/domicile.336 It may

thus be argued that having more than one national connection is possible, but to

maintain more than one citizenship would be undesirable and should not be (easily)

tolerated.

Spiro advances that the parameters of nationality and citizenship do not entirely

coincide, as African Americans prior to the 14th Amendment of the American

Constitution, provide a classic historical example of being a national of a state and at

the same time not enjoying the full rights of citizenship.337 In the case of United

States v. Wong Kim Ark (1898) the Court held that “it is the inherent right of every

independent nation to determine for itself and according to its own constitution and

laws what classes of persons shall be entitled to its citizenship (my emphasis).”338

One may conclude from the above discussion that domicile should play a greater role

in determining who the citizens of a certain State are. It is submitted that in order to

determine whether or not a person could or should be able to claim diplomatic

protection from a certain State, the required effective link should pertain to

citizenship (determined through effective domicile) rather than nationality, as this

would make such determination easier than to determine which (multiple) nationality

at the time in question was effectively the (most) dominant nationality.

In the following chapter the incidence and desirability of dual status will be discussed

in greater depth. The nationality practices of various European countries will also be

discussed.

336

Naujoks op. cit. at 2. 337

Spiro Dual Nationality op. cit. at 1417. 338

169 U.S 649, 668 as quoted by Spiro Ibid.

53

CHAPTER FOUR

Dual-status – its origin and desirability

“It is better to tolerate a man with two wives than a man with two countries.”

George Bancroft.

“The growth in dual nationality presents more opportunities than dangers, freeing

individuals from irreconcilable choices and fostering connections that can further

travel, trade and peaceful relations.”

David Martin and Alexander Aleinikoff

In the fourth century, the Romans introduced the concept of dual “Latin” and

“Roman” citizenship, thus enabling a man to be simultaneously a citizen of his own

city as well as of Rome.339 Morse writes that when the lex Julianan municipalis had

given Roman citizenship to all of Italy and from the date of the Constitution of

Caracalla (Caesar), no matter in what city the local domicile was, Rome became the

common country and all inhabitants became citizens.340 Every member of any

municipality had at least double citizenship as he was a citizen of Rome as well as of

the smaller municipality.341 The granting of Roman citizenship to all free inhabitants

of the Roman Empire resulted therein that the distinction between Roman citizen and

peregrinus became obsolete.342 Dual citizenship therefore became a common status

in Rome for political reasons and while it may have been unacceptable for a Roman

citizen to be subjected to foreign authority, it was beneficial to Rome that foreigners

possess Roman citizenship.343 The Romans thus effectively annexed the loyalties as

well as the lands of their defeated enemies in “exchange” for Roman citizenship.344

339

Heater Citizenship op. cit. at 16. 340 Morse A Treatise op. cit. at 25. 341

Id. at 22. 342

Schiemann Peregrinus. 343

Boll Multiple Nationality op. cit. at 63. 344 Heater Citizenship supra at 16.

54

History tells that the ties between the individual and the various levels of sovereigns

in feudal Europe were complicated. The notion of one individual having ties, even

reciprocal rights and obligations, to more than one sovereign was, however, not

unknown in feudal Europe.345 According to Boll, the increased freedom of movement

in Europe had come about due to the elimination of feudal ties and made the early

19th century the golden age for the codification of citizenship laws.346

Early models of nationality and citizenship, according to Spiro,347 worked from the

presumed personal relationship between the individual and the sovereign, a

relationship that was rooted in the laws of nature and therefore deemed perpetual.

Before the French and American revolutions, political status was associated with the

perception of unchosen perpetual allegiance which was regarded as a natural vertical

tie between the individual subject and the king. These ties were unbreakable.348

The law did thus not recognise dual nationality as a legitimate status.349

As a result of increased globalisation, many more children are born either to parents

from two different countries or on the soil of an increasing number of states350 that

allow for citizenship by place of birth.351 Spiro states that dual nationality was long

disfavoured under traditional theories of the individual’s relationship to the state,352

as the possible divided loyalties of dual nationals represented a serious potential

threat from within the state in times of international conflict.353 According to

Margiotta and Vonk, French paranoia was triggered during World War I towards

naturalised persons of enemy origin – German, Austrian and Ottoman.354

345

Boll Multiple Nationality op. cit. at 175. 346

Ibid. 347

Spiro Dual Nationality op. cit. at 1419. 348

Herzog Dual Citizenship op. cit. at 90. 349

Spiro supra 1420. Perpetual allegiance could, however, not change the fact of greater global

mobility. The most significant strain of dual nationality was found between Great Britain (adhering

to perpetual allegiance) and the United States to which British subjects were emigrating. Perpetual allegiance worked against the transfer, not division, of allegiances.

350 States following jus soli are Canada, the United States of America, Argentina, Bolivia, Brazil,

Ecuador, Fiji, Guatemala, Honduras, Jamaica, Lesotho, Mexico, Namibia, Pakistan, Peru, Uruguay

and Venezuela to mention a few. 351

Howard Variation op. cit. at 1. 352

Spiro supra at 1414. 353

Id. at 415. 354

Margiotta and Vonk Nationality Law op. cit. at 2.

55

Spiro writes that a committee of experts from the League of Nations in 1926 drafted

a convention on nationality in which it was not sought to reduce the incidence of

dual nationality, but rather to look at ways to manage the associated conflicts

through constraints on the exercise of diplomatic protection.355 In 1930, the League

of Nations felt that, in the interest of the international community, all members

should recognise that every person should have one and only one nationality. The

very concept of dual nationality was seen as fundamentally opposed to the on-going

formation of the modern international order based on the nation state.356 After

World War II and especially with expanding global trading, people became more

mobile and mixed, resulting therein that many more international marriages took

place, which in turn produced more bi-national children than at any other time in

history. Parents and children of such unions spent considerable time in and felt

loyalties and allegiance to both countries.357

Dual-status, by allowing multiple belonging, rights and responsibilities, inhabits a

curious place, as on the one hand it is seen to undermine traditional citizenship while

on the other opponents thereto worry that (new) nationals might lack sufficient

loyalty to their new country.358 Spiro argues that the incidence of dual nationality is

the inevitable result of the failure to develop a universal rule of nationality.359 The

growing popularity of dual status, however, does more than evidence the decline of

single citizenship.360 In a world that demanded singular nationality,361 individuals

could be assumed to opt for a particular nationality because it was their first (and

only) choice.362 Faist is of the opinion that dual citizenship is a simultaneous rather

355

Spiro A New International op. cit. at 702. 356 Howard Variation op. cit. at 3. 357 Id. at 4. 358 Bloemraad I “Who claims dual citizenship? The limits of Postnationalism” in: International Migration

Review (2004) 3. 359

Spiro Dual Nationality op. cit. at 1417. 360 Spiro JP “Dual Citizenship: A Postnational View” in: Dual citizenship in global perspective: from

unitary to multiple citizenship (2007) 195. 361

At the League of Nations Conference of 1930 it was stated that “the Conference is unanimously of

the opinion that in is very desirable that states should, in the exercise of their power of regulating

questions of nationality, make every effort to reduce so far as possible cases of dual-nationality…” 362 Spiro Dual Citizenship supra at 195.

56

than a successive form of citizenship by which one may retain only one citizenship at

a time. 363 I disagree and it is submitted that dual nationality is a simultaneous

rather than a successive form of nationality, whereas citizenship status should be

successive rather than simultaneous. Often dual nationality is a status of little choice

as same may have been conferred to a child born in a country that confers

nationality through jus soli on a parent(s) whose nationality is conferred through jus

sanguinis. Citizenship on the other hand, according to the writer hereof, is most

often a chosen “status” and as was hypothesised in the aforegoing chapter, could be

closely linked to the principle of domicile and if so, it should follow that citizenship

status would and should be successive rather than simultaneous.

A Chinese delegate of the 1930 League of Nations Conference stated that

“Nationality is not merely a matter of law, it is not a matter of accident, it is not a

matter of technicality – it is a matter of the heart.”364 Sik365 states that dual

nationality is created by international law which gives states the sovereign right to

regulate and determine how nationality may be obtained and how same may be lost.

It is, however, the interplay of different approaches that gives rise to cases in which

individuals hold nationality in more than one state,366 but there are, according to

Sik367, essentially three ways in which dual nationality is created; namely by

marriage, by birth and by voluntary acquisition. These ways may be more or less

desirable and therefore also more or less avoidable368 and are discussed below.

Marriage – A woman marries a foreigner and most often through domicile in her

husband’s country acquires a second nationality.369 The wife, by reason of her

marriage, will in all probability not cut her ties with her country of origin as she is still

363

Faist and Gerdes Dual Citizenship op. cit. at 21. 364

Acts of Conference, vol II: Minutes of the first committee, League of Nations doc. C 351(a)M.

145(a) 1930, V 48. 365

Sik, KS De Meervoudige Nationaliteit (1957) 60. 366

Spiro Dual Nationality op. cit. at 1417. 367

Sik supra at 60. 368

Id. at 319. 369

It is arguable whether or not domicile should be deemed a determinant of nationality. It is trite

that domicile is generally freely chosen and may therefore be linked to citizenship.

57

linked thereto through her family, culture and upbringing.370 Dual nationality would

thus be the most accurate description of the wife’s social position in her husband’s

country as well as her emotional state with regard to her country of origin.371

In this instance, Sik argues, the husband’s state will primarily answer the question of

whether the wife should take the nationality of her husband, or whether she should

(automatically) loose or keep her own nationality, by considering both the interest of

the marriage and the interest of the wife. It is suggested that allowing a wife to

become a dual national by reason of marriage would result in few, if any,

unavoidable conflicts between the states in question.372

Margiotta and Vonk postulate that the cause of “marital” dual nationality resulted

from the equalisation of the sexes in nationality law.373 Prior to the 1970s, a woman

had no independent position in nationality law and as a result lost her nationality

upon marrying a foreigner, automatically acquiring her husband’s nationality. The

woman could thus not transmit her original nationality upon her children.374

It is submitted that the above mentioned position of attaining a foreign nationality

through marriage is misguided. It is suggested that an individual can merely attain

“automatic” citizenship in the spouse’s State and not nationality since nationality is a

status acquired through either birth or descent.

Birth – Dual nationality that has arisen by birth and has as a rule been acquired due

to the competing operation of jus soli and jus sanguinis differs materially from dual

nationality acquired through marriage.375 Sik argues that dual nationality acquired by

birth will be more difficult to eliminate as the state’s interest in this instance is of

primary importance, since nationality acquired at birth forms the foundation on which

370

Sik op. cit. 319. 371

Ibid. 372

Id. at 320. 373

Margiotta and Vonk Nationality Law op. cit. at 3. 374

Ibid. 375

Ibid.

58

the formation of the state rests. It would be difficult to expect from either state to

give up such an acquired nationality in order to avoid dual nationality occurring.376

Orfield claims that most cases of jus soli will involve birth in the physical territory of

the state.377 Where both parents have the same nationality only one jus sanguinis

will apply. It is further argued by Orfield that no other legal principles than those of

jus soli and jus sanguinis should be applied to nationality at birth,378 and I am in

agreement with this point of view. Orfield is furthermore of the opinion that the

application of jus soli to children born of foreigners of certain classes (eg. foreign

consuls or transient aliens) results in some unfortunate cases of dual nationality.379

By voluntary acquisition – A person who is already in possession of a(n) (original)

nationality and on grounds of a voluntary legal action, according to Sik, obtains

another nationality signals that he/she wishes to break the juridical and political

bonds of the original nationality.380 Such an individual cannot reasonably expect to

keep his/her original nationality, as this would create a strong impression that he/she

does not unconditionally accept his/her new nationality. One cannot expect from a

state to provide its nationality to an individual who only sees therein a means to

achieve his/her economic endeavours and who acknowledges that he/she wants to

give their loyalty to two states.381

It is submitted that the reasoning in the above paragraph is flawed in that a person

cannot renounce their nationality which has been (and can only be) acquired either

by jus soli, jus sanguinis or a combination of these two principles. The only

exception would be in the case where a nationality was “automatically” acquired

through marriage and even in such a circumstance it is hypothesised that marriage

brings

376

Margiotta and Vonk Ibid. 377

Orfield The legal op. cit. at 430. 378

Ibid. 379

Id. at 431. 380

Sik op. cit. 321. 381

Id.

59

with it an automatic acquisition of citizenship rather than nationality. If one were to

stable a camel with horses, the camel would not with the effluxion of time or due to

the fact that it was stabled with horses become a horse. In the same way

when, for example, an Arab marries a Russian, the Arab would not become an ethnic

Russian by living in Russia for any number of years or simply due to having married

a Russian. It is my submission that the Arab person could become a Russian citizen,

but never a Russian national as he or she was not born into that status.

Spiro382 warns that one should, however, not underestimate the sentimental obstacle

to naturalisation,383 where it involves abandoning one’s birth nationality. It is

postulated that fewer aliens would naturalise in a regime where dual nationality

would not be accepted or tolerated, as many aliens may be unwilling for either

sentimental or economic reasons to cut their ties to their homelands.384 Miller385

claims that at an international conference on dual nationality, “immigrant

spokespersons complained that renunciation of native citizenship constituted an

enormous psychological and practical barrier to naturalisation”. During the early

1960s, this was specifically the case in Germany when only about 0.3 percent of

Germany’s foreign residents elected to become naturalised.386 Cook-Martin

postulates that the “state to which an individual belongs by birthplace or kinship

determines or affects one’s political voice, identity and status derived from the place

occupied by one’s country in a global hierarchy of nation-states”.387

Consistent with international law, dual nationality remains a status that states may

accept or reject at their option. When a sovereign state thus grants full functional

382

Spiro Dual Nationality op. cit. at 1465. 383

Naturalisation is an act by which an alien is made a citizen (not a national) of a particular state or

country. In order to qualify, such person must meet a number of statutory requirements such as

permanent residence, language competence, be of “good moral character” and must often take an oath of allegiance.

384 Ibid.

385 Miller, MJ “Dual citizenship: A European Norm?” in: International Migration Review Vol. 23, No.4

(1989) 948. 386

Id. at 945. 387

Cook-Martin The scramble op. cit. at 97 & 98.

60

citizenship388 to an individual who has a parallel relationship to a different

community, that individual’s national identity is then not necessarily the same as that

of the passport being held389 - mere citizenship does not automatically reflect

nationality. The 1997 European Convention on Nationality requires parties to it to

recognise dual nationality where it results from mixed-nation parentage.390

Borchard is of the opinion that the following four principles dominate the bond of

nationality, namely –

1. The idea of legal attachment expressed in former times by membership in a

clan or tribe, advancing later into the broader bond of membership of a city,

state and nation.

2. The exclusiveness of nationality as ascribed by public law (only one nationality

to an individual) even though differences in municipal law of different states

have occasionally endowed an individual with plural nationality.

3. The principle of mutability which permits the individual at the present day to

change his/her nationality.

4. The principle of continuity by which the nationality of origin is retained until a

new one is acquired – emigration without naturalisation in another state does

therefore not break the bond of (original) nationality. 391

Donner states that there are treaties which on the one hand provide for the principle

of dominant nationality and on the other there are treaties which encourage dual

nationality. 392 Such treaties are mainly signed between two or more states which

have a common desire to strengthen the historical ties between them as, for

example, Spain and the Dominican Republic. These treaties often provide that

388

Full functional citizenship status grants the holder thereof all rights of citizenship, including the

right to vote and to hold office. 389 Fleming The Functionality op. cit. at 1817. 390 Recognising that, in matters concerning nationality, account should be taken both of the legitimate

interests of the State and those of individuals. Desiring to avoid discrimination in matters relating

to nationality. The Maastricht Treaty’s preamble further also frames dual-citizenship as a right. 391

Borchard Multiple Nationality op. cit. at 19. 392

Donner The Regulation op. cit. at 131.

61

nationals of one contracting party resident in the territory of the other may, in

conformity with the legislation of the country of residence, acquire its nationality and

submit to its laws while retaining their nationality of origin.393 Accordingly the idea

was not to establish two concurrent nationalities of equal validity, but rather the co-

existence of a “full” nationality together with a secondary “dormant” nationality, the

dominant nationality being that of the country of domicile.394

Donner cites that a Hong Kong court explained that dual nationality was not one half

of one nationality and half of another.395 Dual nationality was in fact two complete

nationalities as far as English law is concerned, and from this it followed that a

person possessing dual nationality did not owe less allegiance than a person who

only possessed one (British) nationality.396

The courts have, according to Donner, when confronted to determine the nationality

of a person who is claimed as a national by more than one State, applied the

doctrine of dominant or effective nationality.397 Rode states that the crux of this

doctrine determines that where there is a conflict between two governments

regarding the nationality of a claimant, who is a dual national, the nationality of the

claimant’s habitual residence should prevail over his/her other nationality.398 In the

Canevaro case,399 brought before the Permanent Court of Arbitration in 1912, the

Court firstly accepted that Rafael Canevaro had both Italian and Peruvian nationality

by operation of the respective nationality laws of the two countries in question. The

Court then proceeded to investigate which nationality the claimant actually used for

purposes of diplomatic protection – the effective nationality test.400

393

Donner op. cit. at 203. 394

Id. at 204. 395

Id. at 205. Inouye Kanao v The King Hong Kong, Full Court, 16 July 1947 Case no. 103. 396

Ibid. 397

Donner supra at 41. 398

Rode ZR “Dual Nationals and the Doctrine of Dominant Nationality” The American Journal of International Law Vol. 53 No. 1 (Jan 1959) 140. It speaks for itself that the theory of dominant nationality has nothing to do with the application of nationality questions under municipal law

(p 144). 399

Italy v Peru 1912 (Canavero) Amercian Society of International Law Vol. 6 No. 3 (July 1912)

http://www.jstor/stable/2187082 [accessed on 05/10/2014] 400

Leigh Nationality op. cit. at 462.

62

In the Nottenbohm401 case, the International Court of Justice rendered an individual

stateless in the international sphere on the grounds that (his) naturalisation occurred

without the contemporaneous facts of a connecting link. The court emphasised the

need for real and effective nationality as the basis for diplomatic protection.402

According to Donner, there must be the fact of permanent residence in a State and

further evidence that in that State lies the centre of the individual’s interest. As a

standard of international law the meaning of the link differs from that of domicile – it

is a mixture of fact and law.403 Mosk points out that the terms “dominant” and

“effective” nationality may not be used interchangeably as “effective” nationality has

international effect, while “dominant” nationality means “the one that has stronger

ties to one sate – a concept of relativity.” 404 Martin and Aleinikoff are of the opinion

that whenever laws, rights or obligations conflict, states should give primacy to the

country of principal residence.405

Safran argues that a reason for opposing dual status is the fear of dual loyalty,406

whereas Orfield suggests that the most valid objection to dual nationality arises in

states where status and personal rights are dependent on nationality, rather than

domicile.407 According to Spiro, the risks of dual nationality have largely diminished

as democracies rarely if ever make war on one another. War, or the threat of war,

ultimately made dual nationality problematic in a hostile world.408 Diplomatic

protection is, furthermore, no longer exclusively a function of nationality where

states take care of their own. According to Spiro, diplomatic protection is covered by

401

Lichtenstein v Guatemala [1955] ICJ Reports 4 at 20-1. The issue was whether international

recognition should be given to a nationality determination in circumstances in which no real and

objective link ever existed. [ http://www.refworld.org/docid/3ae6b7248.hmtl ] [accessed 10 September 2014].

402 Dugard International Law op. cit. at 284.

403 Donner The Regulation op. cit. at 119.

404 Mosk RM “Claims of Dual Nationals and the Development of Customary International Law: Issues

before the Iran-United States Claims Tribunal by Mohsen Aghahosseini” The American Journal of International Law Vol. 102 No, 1 (Jan 2008) 219.

405 Martin DA and Aleinikoff TA “Double Ties” Foreign Policy No. 133 (Dec 2002) 81.

406 Safran Citizenship op. cit. at 330.

407 Orfield The legal op. cit. at 428.

408 Spiro Dual Nationality op. cit. at 1461.

63

the umbrella of international human rights, in which the international community

protects the abused regardless of nationality.409

Persons who enjoy a dual status are often seen by others to experience more

advantages than disadvantages. Some of the advantages entail the right to take up

residence and work in either country without losing the right to also do so in the

other country.410 Today the major objections to dual status are based on the

fundamental concepts of nation state, national identity and loyalty,411 whereas much

of the earlier opposition to dual nationality had been based on the fears of global

instability and interstate conflict.412 Although some states still approach dual

nationality with hostility, Margiotta and Vonk maintain that dual nationality is no

longer a legal impossibility.413

Fleming opines that a fundamental change in the composition of the state’s “nation”

must be entertained if the multicultural citizens within a state are to be effectively

accommodated.414 This accommodation does, however, not affect the duties that

the individual and the state owe each other. Nationality should be considered an

unique and exclusive status that incorporates the individual’s historical and cultural

notion of national allegiance.415 Nationality should thus be viewed as a mechanism

through which individuals may declare their personal identity within the global

political spectrum.

The most important consequence of nationality on the international plane is that a

state may protect or intervene on behalf of its nationals when they are harmed by

other states. The right involved pertains to the customary international law of the

state of nationality, and in terms of international law, its exercise is at the complete

409

Spiro supra at 1462. 410 Hammar T “Dual citizenship and Political Integration” in: International Migration Review (1985) 447

http://www.jstor.org/stable/2545849 [accessed 30 September 2013]. 411 Id. at 448. 412 Habermas Citizenship op. cit. at 4. 413

Margiotta and Vonk Nationality Law op. cit. at 2. 414 Fleming The Functionality op. cit. at 1819. 415 Id. at 1827.

64

discretion of the state.416 According to Spiro, before the advent of human rights,

diplomatic protection stood as the only constraint on the exercise of state power

against individuals on sovereign territory.417 Rules relating to the international

recognition of nationality are relevant in international terms, but not on the level of

municipal law. Recognition of nationality in municipal law is relevant only when

municipal law expressly regulates when multiple nationality will or will not be

recognised.418

Herzog explains that the revocation of citizenship is not a random policy that is

introduced for election purposes, but is contingent on militarised conflicts. 419

“Citizenship as a social construction has more to do with the actual needs of the

state than with a general coherent and stable ideological perception.”420

The Namibian Citizenship Act,421 under Section 26, expressly prohibits dual status as

it states that “no Namibian citizen shall also be a citizen of a foreign country”. The

Namibian Constitution under Article 4(8) provides, however, that no person who is a

citizen of Namibia by birth or descent may be deprived of Namibian citizenship even

when they have, after independence, acquired the citizenship of any other country

by any voluntary act. Namibian nationals are thus allowed to hold dual status,

whereas Namibian citizens are prohibited to hold such dual status. In Tlhoro v

Minister of Home Affairs,422 the Court found that it is consistent with the Constitution

to require renunciation of other citizenships by persons wishing to become Namibian

citizens by naturalisation (writers underlining). The Court, however, further noted

that this does not apply to Namibian nationals by birth or descent.

Sejersen postulates that dual citizenship can be seen as an extension of individual

rights and therefore the question of dual citizenship may also be analysed by

416

Boll Multiple Nationality op. cit. at 114. 417

Spiro A New International op. cit. at 704. 418

Id. at 150. 419

Herzog Dual Citizenship op. cit. at 95. 420

Ibid. 421

Act 14 of 1990. 422

[2008] NAHC 65 (2 July 2008).

65

focusing in the individual.423 Globalisation and improved communication technologies

have, according to Sejersen, created opportunities for individuals to live across

various geographical locations simultaneously.424 Many states exist with a multitude

of nations living within their borders and resultantly citizenship is a constantly

changing concept and practice.425 It is submitted that Sejersen’s reference to dual

citizenship would have been contextually more appropriate had she referred to dual

nationality, although it has to be admitted that the concept of citizenship is

constantly changing.

Spiro is of the opinion that international norms are emerging to protect an individual

right to maintain dual nationality and that both practice and theory in this regard

have become noticeably more receptive to dual status.426 The 1997 European

Convention of Nationality, according to Spiro, represents a watershed as the first

multilateral undertaking that protects dual nationality.427 Furthermore, and at a time

when global mobility has produced a rise in the number of birth dual nationals, fewer

states persist in requiring those born with dual nationality to elect one at attaining

majority.428

Nationality practices of various states

Switzerland, in order to avoid statelessness, accepts the consequences that dual-

nationality may bring about and therefore, neither on account of marriage or

naturalisation, seeks to avoid dual nationality. By maintaining such a liberal point of

view, Switzerland sees nothing unnatural nor unacceptable in the fact that the love

for and the ties to the country of origin remain, despite obtaining a new

“nationality”.429

423

Sejersen “I vow” op. cit. at 526 - 527. 424

Ibid. 425

Id. at 543. 426

Spiro A New International op. cit. at 733. 427

Id. at 734. 428

Id. at 735. 429

Sik op. cit. 316.

66

In 1946, Canada introduced the status of independent Canadian citizenship and

thus made Canada the first member of the British Commonwealth to establish

citizenship distinct from the “Mother Country”.430 The 1946 Citizenship Law reflected

the national logic that national loyalty should be exclusive and therefore multiple

allegiances should not be allowed. After the introduction of the Citizenship Act of

1977, citizenship was perceived as a natural right that the government cannot

revoke.431 The 1977 Citizenship Act articulated the principle that Canadian-born

citizens can never lose their citizenship.432 It is submitted that the aforegoing use of

the term citizenship is unfortunate as the term nationality would have been more

appropriate; consequently, a Canadian national can never lose his/her nationality.

Safran writes that early American society was shaped out of the diverse ethnic

communities that had immigrated in large numbers and was characterised by an

openness to outsiders and a relative absence of historical constraints.433 Exhibiting

commitment to democracy, equality and the other values enshrined in the US

Constitution, defined being an “American”.434 Conrad states that in the

contemporary US, the incidence of important rights and corresponding duties has

become significantly dissociated from the legal status of citizenship.435 Despite its

multi-national origin the United States of America does not explicitly allow dual

national allegiances, the reason therefore presumably being that since the US was

created out of an armed revolution and has since participated in many wars, its

citizenship is perceived as an issue of national security.436

Spiro advances that in the 1800s it was generally felt that those who voluntarily

maintained dual nationality posed a threat to the protection of the community and

President Grant in his annual address to Congress in 1874 decried this state of affairs

430

Herzog Dual Citizenship op. cit. at 97. 431

Ibid. 432

Id. at 98. 433

Safran Citizenship op. cit. at 318. 434

Ibid. 435

Conrad SA “Citizenship” in Hall, KL ed. The Oxford Companion to American Law. 2002. Oxford

Reference Online [ http://www.oxfordreference.com/views/ ] [accessed on 9 July 2013] 436

Herzog supra at 97.

67

and stated “…. persons claiming the benefit of citizenship, while living in a foreign

country, contributing in no manner to the performance or duties of a citizen of the

United States …… to use these claims of citizenship of the United States simply as a

shield for the performance of obligations of a citizen elsewhere.”437

Today, everyone within the jurisdiction of the US is accorded most of the rights and

protections of the Constitution, although certain rights have traditionally been

“reserved” for American citizens only. Conrad writes that “’permanent resident

aliens’ share with citizens the duty to contribute to the defence of the US against

foreign enemies, to pay applicable taxes and to obey the law, but only citizens are

subject to jury duty and may hold the office of president.”438 It is submitted that

only nationals of the United States of America should be eligible for jury duty and to

hold the office of president.

In Israel dual citizenship is legally and explicitly permitted. Herzog439 claims that

Israel’s demographic needs made additional Jewish immigrants essential and therefor

different attitudes towards dual citizenship were constructed which consequently

advanced a different understanding of the ties between the individual and the state.

Consistent with the ethnic principle of the Israeli State, the 1950 Law of Return

explicitly refers to the right of only Jews to reside in Israel.440 The Israeli parliament,

nevertheless, enacted an additional statute to regulate citizenship in Israel and in

their discussions whether the state should allow dual citizenship, came to the

conclusion that same was ultimately justified to encourage immigration.441 From the

aforegoing, it may be deduced that citizenship and nationality were used

interchangeably and it is submitted that referring to Jewish nationality would have

been more appropriate.

437

Spiro Dual Nationality op. cit. at 1432. 438

Conrad op. cit. 439

Id. at 99. 440

Id. at 100. 441

Herzog Dual Citizenship supra at 101.

68

In 1870, the German Empire enacted a law that made jus sanguinis the operative

principle for granting citizenship, which principle is still applicable today. The Empire,

essentially a confederation of sovereign kingdoms, grand duchies and free cities,

knew no central German citizenship. Inhabitants were citizens by virtue of having

been granted citizenship by the sovereign province in which they lived.442 Being

strongly jus sanguinis based, German citizenship was easier to acquire for persons of

German ethnicity, even with limited ties to Germany, than it was for foreigners who

had continuously lived in Germany for many years.443

Green writes that the key aim of the 1913 “Act” was to enable German emigrants to

the United States to retain their German nationality alongside their U.S citizenship

down through the generations.444 Ius sanguinis transmission of nationality was

initially limited to a German father until in 1975 this privilege was extended to

German women as well. It is only since 1993 that either parent is able to transmit

German nationality to a child irrespective of their marital status.445 The reformed

German Nationality Law of 2000 refrained from generally acknowledging dual

nationality, but it did introduce a limited ius soli regulation that entitles children born

in Germany to foreign parents to hold German nationality even if they possess

another nationality. At the age of majority, but not later than 23 years of age,

however, such children must decide on one of their two nationalities.446 Green

postulates that the new Citizenship law furthermore also limits the automatic

inheritance of German nationality abroad to the first generation.447 It is suggested

that German nationality law correctly provides that foreigners can never become

German nationals irrespective of how many years they have been resident in

Germany. Such foreigners should, however, be able to become citizens since they

have been domiciled by choice in Germany for many years.

442

Safran Citizenship op. cit. at 21. 443

Sejersen I vow op. cit. at 541. 444

Green S “Between Ideology and Pragmatism: The Politics of Dual Nationality in Germany”

International Migration Review Vol. 39 No.4 (Winter 2005) 924. 445

Ibid. 925. 446

Naujoks Dual Citizenship op. cit. at 1. 447

Green ibid.

69

In 1992, the Italian government recognised the importance of dual citizenship and

since the 15th of August 1992, any Italian citizen who had acquired the citizenship of

another country nevertheless maintains his/her Italian citizenship.448 In terms of a

ministerial circular of April 1991, which is still in force today, the descendants of

Italian emigrants who had been attributed another nationality iure soli but have

never renounced their “inherited” Italian nationality have unrestrictedly transmitted

their Italian nationality to their descendants.449 Margiotta and Vonk postulate that

even “a person who can prove descent from an Italian who emigrated before the

unification of Italy in 1861 is entitled to Italian nationality, provided that the Italian

ancestor was alive at the time of unification.”450 The new 1992 legislation, however,

recognised that becoming a citizen of another country is necessary for the full

participation and integration in the society of residence.451 It would seem that the

Italian Government understands the differentiation between nationality and

citizenship and has made provision in its laws to enable its nationals to hold dual

nationality as well as to be citizens of not only Italy itself, but also of another country

of choice/residence.

Safran states that the British approach to nationality and citizenship is more

complicated as there is no single comprehensive law in Britain that defines these

categories.452 Great Britain itself evolved as a United Kingdom from four distinct

nations – English, Scottish, Welsh and Irish – and these subjects were not “national”

of Britain453 and hence England’s aggressive assertion of the common law doctrine at

the beginning of the 19th century, according to which it was simply not possible for a

British national to become naturalised in another country as “no such letter of

naturalisation divests our natural-born subject of the allegiance, or in any degree

alters the duty which they owe to us, their lawful Sovereign.”454 During the colonial

448

Fendi, M “Transnational citizenship: multiplicity of rights, responsibilities and opportunities.” in:

People and Place Vol. no. 14.4 (2006) 37. 449

Margiotta and Vonk Nationality Law op. cit. at 9. 450

Ibid. 451

Fendi op. cit. 37. 452

Safran Citizenship op. cit. at 323. 453

Ibid. 454

Spiro Dual Nationality op. cit. at 1422.

70

era, everyone born within the British Empire held a similar nationality status and all

exercised the full rights of British subject should such colonial subject come to the

United Kingdom.455 In 1948, the first major reform of nationality law was adopted

according to which the single status of “British subject” was applied to all those born

in the British crown dominions, whereas birth in a British protectorate did not in

general confer British subject status.456 A distinction between the immigrants from

the Old and New Commonwealth was, however, brought about with the 1971

Immigration Act which introduced the concept of “patriality”. A “patrial” was defined

as someone who was born in the UK or whose parents or grandparents had been

born in the UK.457 Safran stated that before the coming into force of the 1981 British

Nationality Act, jus soli was applied to individuals, regardless of ancestry, born in the

UK or in a British crown colony. After 1981, however, British nationality has

predominantly been accorded on the basis of jus sanguinis, whether or not the child

was born in the UK.458

From the above discussion, it becomes clear that the concepts of nationality and

citizenship are continuously used interchangeably by too many states, making it quite

difficult to determine whether a provision made in a specific nationality law refers to

nationality or citizenship. Due to the blurring of the distinction between citizenship

and nationality, it would seem that modern understanding of these terms has also

changed significantly. Citizenship has resultantly become an all-inclusive term,

whereas nationality is only referred to when talking about a person’s race or

ethnicity.

What may be stated with some degree of certainly is that for most people nationality

refers to a person’s roots, their heritage, their origin and culture, their national

identity as belonging to a certain race or nation. For the ordinary man in the street,

citizenship means his right to be economically, socially and even politically active

within a specific society or country. For the majority of people the incidence of

455

Margiotta and Vonk Nationality Law op. cit. at 8. 456

Manby B Struggles for citizenship in Africa (2009) 28. 457

Ibid. 458

Safran Citizenship op. cit. at 24.

71

nationality and citizenship coincide, meaning they happen to be a national of state

“A” as well as a citizen thereof, whilst for a minority of people the one does not

automatically include the other. Taking the above discussions into consideration it

would probably be more expedient to use a twofold manner when referring to

citizenship. ‘National citizenship’ would refer to a national who is also a citizen of

his/her state of “origin”, whereas ‘citizenship’ would refer to a person who is a

national of one state, but has elected to be a citizen of another state, unrelated to

his/her state of “origin or nationality”.

In the following chapter the question of citizenship and nationality in the African

context will be discussed. Due to Africa’s mainly colonial past, nationality and

citizenship have a different meaning and are not necessarily understood intuitively or

in Western or European terms. In Africa, race and ethnicity play a significant role in

determining who is either a citizen or a national.

72

CHAPTER FIVE

An African perspective with special reference to Namibia

In the preceding chapters an attempt was made to clearly differentiate between the

concepts citizenship and nationality. African literature on the subject makes

maintaining the differentiation difficult as the various writers on the subject, as well

as national laws with regard thereto, use these terms interchangeably. This chapter

will mainly focus on how Africa deals with citizenship/nationality.

In Africa, the application of the term nationality becomes particularly problematic in

all those cases where people of the same national origin belong to several states as

citizens.459 In 1884 in Berlin and prior to the partitioning of Africa, citizenship under

African local governance was customary, carefully edged in tradition and jealously

guarded against tyrannies.460 Manby suggests that many of Africa’s new states faced

a particular challenge to create an “imagined community” among groups of people

thrown together without their own permission.461 The inhabitants of the ‘colonies’

automatically became citizens of the imperial countries, ostensibly with the same

rights as home citizens.462 Nationals of each imperial country and its ‘colonies’

and/or its ‘protectorates’ were, in terms of international law, regarded as citizens of

that imperial country, since both were under the care of the same imperial

country.463 The vast majority of African colonies that were subject to civil law

countries practicing jus sanguinis stuck to this principle after independence, and

Bertocchi maintains that many former UK and Portuguese colonies rejected the jus

soli tradition and switched to an often strongly ethnically-tinged version of jus

sanguinis.464 For most present African states, according to Oyelaran and Adediran,

459

Oommen Citizenship op. cit. at 14. 460

Oyelaran O and Adedira MO “The African case” in Oommen op. cit. 179. 461

Manby Struggles op. cit. at 4. 462

Ibid. 463

Id. at 180. 464

Bertocchi & Strozzi The Evolution op. cit. at 9.

73

citizenship at independence became constitutional and divorced from the people’s

existential conditions.465

In 1929, Suleman Abdul Karim, the son of an Indian father and African mother, was

sued by a white settler Ernest Carr for the recovery of a debt in the High Court of

Nyasaland, now Malawi. Karim could have asked for exemption under Nyasaland

statutes because a “non-native” was not permitted to give credit to natives;

however, Karim elected to stand trial as a “non-native”.466 Judge Haythorne Reed

noted that the defendant did not wish to take the defence that he is a native and

further observed that “a native is defined as a native of Africa not being of European

or Asiatic race or origin”467 - the defendant thus held “non-native” status because of

his Indian father. The Judge further stated that: “A person’s race or origin does not

depend on where a person is born, just as a child of European parents being born in

India or China is therefore not an Indian or Chinaman.”468 Race thus depends on the

blood in one’s veins. Lee further maintains that the term “native” was a key

organising principle of colonisation in Africa – its universality in the context of Africa

was the tacit assumption that it referred to a person who was black.469

To understand why several African states accept or sanction differential citizenship

based on multi-ethnic social structures, one has to understand that a crisis exists in

most African states due to the existence of diverse ethno-cultural groups within the

same state.470 Although redesigned in form, so Adejumobi contends, the “colonial

political structure and later state formation witnessed no radical or qualitative

transformation in the post-colonial era in most African states beyond the change of

personnel”471. Heater suggests that the ideas of nationalism and the nation-state

465

Bertocci & Strozzi supra at 9. 466

Milner-Thornton JB The Long Shadow of the British Empire: The ongoing Legacies of Race and Class in Zambia (2011) 110.

467 Lee CJ ”Jus Soli and Jus Sanguinus in the Colonies: The Interwar Politics of Race, Culture and

Multiracial Legal Status in British Africa” Law and History Review Vol.29 No.2 (May 2011) 498. 468

Id. at 498. 469

Id. at 506. 470

Iroanya Citizenship-Indigeneship op. cit. at 2. 471

Adejumobi Citizenship op. cit. at 160.

74

have not transferred with any comfort to the African continent as a result of the

imperially delineated boundaries which were determined by diplomatic and military

means, unrelated to any sense of identity the inhabitants might have felt. 472 Cooper

states that the new states of Africa needed something around which diverse peoples

could build a sense of communality473 and consequently post-independence political

leaders were faced with the hard task of welding into a nation peoples diverse in

language, ethnicity and religion,474 and as the ruling in Carr v Karim evidences, racial

descent played a vital role in determining status.475 Dorman et al suggest that

“decolonisation often led to the hasty transfer of power to Africans, while state-

building was still a work in progress at the time of independence.”476 According to

Manby, the colonisers left a legacy of legal systems that had created a many-tiered

citizenship structure whose central feature was racial discrimination.477 The fact that

borders between African states were, and still are, “artificial” contributes to the

“national” project experiencing problems. The acceptance of these borders,

however, gave individual states carte blanche to do to their citizens what they

liked.478

Adejumobi suggests that the colonial political structure was predicated on the logic of

dualism.479 On the one hand there was the central state governed by civil laws,

which was the domain of the colonisers and basically urban based, and on the other

there were the native authorities which enforced customary laws. It has been put

forward that the colonial state ensured that there was no local regulatory check on

the chief who, in line with the wishes of the colonial authorities, invented and

reinvented what constitutes “customary laws”.480 Throughout Africa, so maintains

Manby, racial discrimination determined not only political rights, but also freedom of

472

Heater Citizenship op. cit. at 131. 473

Cooper F “Conflict and Connection: Rethinking Colonial African History” The American Historical Review Vol. 99 No. 5 (Dec. 1994) 1519.

474 Shaw International Law op. cit. at 131.

475 Lee op. cit. 507.

476 Dorman et al Making Nations op. cit. at 5.

477 Manby Struggles op. cit. at 4.

478 Id. at 6.

479 Adejumobi Citizenship op. cit. at 157.

480 Id. at 158.

75

movement and the right to hold land.481 White settler societies have, according to

Turner, institutionalised citizenship as a form of national inclusion while continuing to

exclude African communities.482 As a result a debate continues to rage in most of

Africa as to who is a citizen and who is not – the “settler” or the “native”,483 and

while national citizenship was liberalised with civil laws applicable to all, the local

state remains largely ethnicised. Ethnic identity, as opposed to citizenship identity,

determines who in the state gets what, when and how much.484

Post-independence governments are thus faced with the challenge of cementing

national identity within the state that both divides communities and encloses multiple

ethnic groups. Dorman et al state that those who immigrated into the region during

the colonial period are deemed to be outsiders and whose claim to citizenship is seen

as “less” authentic.485 In Africa, history is taken very seriously and old claims are

thus contested hotly,486 as land remains symbolic of citizenship and nationhood,

despite the increased “modern” understanding of legal citizenship.487

Democratisation raised the status of citizenship and after African independence the

colonial subject became a nominal citizen.488

According to Young,489 the Colonial state imposed three classifications of the African

subject:

1. Racially as African,

2. territorially as a native of the continent/units of colonial partition, and

3. tribally as a member of an ethnic category.

481

Manby Struggles op. cit. at 4. 482

Turner Citizenship op. cit. at 226. 483

Adejumobi Citizenship op. cit. at 160. 484

Id. at 161. 485

Dorman et al Making Nations op. cit. at 11. 486

Anti-colonial nationalism is often driven by historical grievances which are related to the

expropriation of land and the removal of legitimacy and livelihood from the local population. 487

Dorman et al supra at 18. 488

Young C “Nation, Ethnicity and Citizenship: Dilemmas of Democracy and Civil Order in Africa” in

Making Nations; Creating Strangers (2007) 242. 489

Id. at 248.

76

Ethnicity on the other hand, was based on the variable list of common attributes:

1. Language,

2. shared cultural practices and symbolic resources,

3. a belief in common ancestry; and

4. shared consciousness of belonging to a named group.490

Young submits that most post-colonial independence rulers had some inkling of the

fragile state of their new domain, and therefore, nation-building became the order of

the day.491 Nationality was invariably married to the doctrine of self-determination,

whereas ethnicity is joined to cultural self-preservation.492 The ideal for new states

was that citizenship should confer on citizens the right to equal protection under law,

would guarantee the right of belonging, and would entitle participation and full

access to the social provisions of the state.493

Oyelaran and Adediran494 maintain that citizenship from the African perspective

applies to three realities and refers to:

1. The African’s membership in a given polity or in a definable civil society with

an identifiable, institutionalised focus of authority for its own governance;

2. rights, privileges, obligations and disabilities accruing to the African by reason

of such membership; and

3. citizenship refers to both the existential and experimental realities which the

African copes with by virtue of that membership.

Africa’s colonial history has thus made the rules governing the transition to

independence particularly sensitive, especially in the context of citizenship law. The

cases of individuals who have been deprived of citizenship relate to those whose

presence is resented today, but who were recognised as colonial subjects prior to

490

Young op. cit. 250. 491

Id. at 248. 492

Id. at 252. 493

Ibid. 494

Oyelaran and Adediran op. cit. 175.

77

independence.495 Manby argues that the differences in the legal systems of the

colonisers have influenced the principles that have been applied since

independence.496 The territories of the British Empire in Africa were essentially

categorised as colonies, dominions or protectorates. Colonies and dominions were

part of the “crown dominion” whereas protectorates were nominally foreign territory

managed by local government structures established under British protection.497

In colonial systems, Margiotta and Vonk argue, it often happened that the colonial

power allowed the retention of its nationality for those who acquired the nationality

of the newly independent state – dual nationality was thus explicitly accepted.498 At

independence, however, many African countries took the decision that dual

citizenship should not be allowed, as they wished to ensure that those who might

have a claim on another citizenship had to choose between the two possible

loyalties.499 Many African states have, however, in recent years changed their rules

to allow dual citizenship.500

Most African countries, according to Manby, apply a compromise in their laws

governing citizenship between the two basic principles of jus soli and jus

sanguinis.501 Apart from citizenship by birth,502 many African countries emerging

from colonialism also confer citizenship by ‘registration’.503 Thus, while nationality on

the basis of jus sanguinis and/or jus soli remains generally accessible, citizenship by

registration (and naturalisation) has been restricted. An applicant for the latter

category must demonstrate an unequivocal willingness to become a citizen, must

495

Manby, B “Citizenship Law in Africa A Comparative Study” Open Society Justice Initiative (2010) 21.

[accessed on 1 July 2014 at www.opensocietyfoundations.org/reports/citizenship-law-africa ] 496

Id. at 28. 497

Ibid. 498

Margiotta and Vonk Nationality Law op. cit. at 7. 499

Manby Citizenship Law supra at 58. 500

Ibid. The African countries allowing dual nationality are Angola, Burundi, Republic of Congo,

Djibuti, Gabon, Gambia, Ghana, Kenya, Mozambique, Rwanda, São Tomé and Principe. South

Africa allows dual nationality but only with the official permission of the government. 501

Id. at 32. 502

Here once again citizenship is used synonymously with nationality. It is writers contention that

nationality is conferred at birth, while citizenship is elected and granted once certain criteria have

been met, such as by registration. 503

Oyelaran & Adediran op. cit. 182.

78

generally be of good character and must show a clear intention to be domiciled in

that particular country.504 It is understood that citizenship by registration and/or

naturalisation may be withdrawn for various reasons such as the voluntary

acquisition of citizenship from another country, by marriage, having obtained the

citizenship fraudulently, or through false representation, etc.505 Numerous court

cases have, however, determined that citizenship by virtue of birth cannot be

withdrawn – thus a person who is a citizen of state “A” by birth cannot be deprived

of his/her citizenship.506

Nigeria

The concept of Nigerian citizenship did not exist prior to British colonial rule.507 In

1960, Nigeria became a sovereign state and resultantly various Acts were

promulgated with regard to Nigerian citizenship.508 Nigeria’s Independence

Constitution created Nigerian citizenship509 and one important feature of Nigerian

citizenship laws before 1974 was the absence of any form of economic activity

discrimination between Nigerian citizens and foreigners. With independence,

however, Nigerians became the masters of their own political destiny and resultantly

the opinion became widely held “that political independence without indigenous

control of the economy meant very little for an under-developed country like

Nigeria.”510 Consequently in early 1974, no person other than a Nigerian citizen

could be the owner or part owner of any economic enterprise in Nigeria. The

504

Oyelaran & Adediran op. cit. 184. This category of citizenship aims at giving individuals the

opportunity to become citizens of their own free will, irrespective of where they may have come

from. 505

Id. at 185. 506

Id. at 187. 507

Okoli KC “Nigerian Citizenship Law: A Current Perspective” Journal of African Law Vol. 34 No. 1

(1990) 27. 508

Nwogugu, EI “Recent changes in Nigerian Nationality and Citizenship Law” in: The International and Comparative Law Quarterly” Vol. 25, no. 2 (1976) 423. The independence Constitution of

1960 made provision for Acts of Parliament to regulate citizenship and so the Nigerian Citizenship Act 1960 and Nigerian Citizenship Act 1961 were enacted. These acts were subsequently

incorporated in the Republican Constitution of 1963. In 1968 the Nigerian Citizenship (Validation)

Decree was proclaimed. 509

Okoli supra at 27. 510

Nwogugu supra at 424.

79

Nigerian Enterprises Promotion (Amendment) Decree of 1973 was enacted to give

the Nigerian citizen a privileged position in the country’s internal trade and commerce

vis-a vis aliens.511

As a result hereof and prior to the promulgation of the Enterprises Decree, foreign

businessmen in Nigeria, particularly those involved in the distributive trade, wished to

acquire Nigerian citizenship in order to enable them to continue to operate

businesses covered by the Decree. The Ministry of Internal Affairs became

inundated with applications for citizenship. In order to avoid that foreigners who had

no real link to Nigeria would not exploit the liberal conditions for the acquisition of

Nigerian citizenship solely for the purpose of economic gain,512 the Constitution

(Amendment) Decree of 1974 was then promulgated, which Decree repealed the

Nigerian Citizenship Acts of 1960 and 1961.

Under the “new” Decree, Nigerian citizenship may be acquired by birth, registration

or naturalisation. Under this Decree there are five categories of persons who may

become Nigerian citizens, namely:

Persons born in Nigeria before 30 September 1960 if either parents or

grandparents were born in Nigeria;

any person born outside Nigeria before or on 30 September 1960 if his/her

father was born in Nigeria;

any person born in Nigeria after 30 September 1960 if either his/her parents

or at least one grandparent was born in Nigeria;

any person born after 30 September 1960 if he/she was born in Nigeria and at

the time of his/her birth either parent was a citizen of Nigeria by registration

or naturalisation or he/she was born outside of Nigeria and at the time of

his/her birth both parents were citizens of Nigeria by registration,

naturalisation or birth;

511

Nwogugu op. cit. 426. 512

Id. at 427.

80

any minor, whether or not he/she was born in Nigeria, whose mother was a

citizen of Nigeria at the time of his/her birth and if he/she was born out of

wedlock to a father who was not a citizen of Nigeria.513

It is submitted that it would have been more accurate to state that Nigerian

nationality could be acquired by birth or descent, whereas citizenship could be

acquired by either registration or naturalisation. Nigerian nationality laws were

specifically enacted to protect Nigerian nationals from possible economic exploitation

by foreigners and therefore a clear distinction between nationality and citizenship

would have been befitting.

Nigeria follows the jus soli principle of conferring Nigerian nationality and dual status

is not allowed, although a Nigerian citizen who was entitled to dual citizenship under

the 1963 Constitution was, as a general rule, entitled to retain such citizenships

indefinitely.514 A foreigner wishing to become a Nigerian citizen, first needs to

renounce his/her present citizenship.515 Dual status would only be allowed in

circumstances were the foreigner wishing to become a Nigerian citizen is unable to

renounce his/her present nationality.

Adesoji advances that Nigeria, like other societies the world over, struggles with the

“indegenes-settler” syndrome.516 The various settler groups in different parts of the

country have always maintained that having settled in a place for a long period of

time gives them the status of indigenes and no longer that of a settler. Adesoji

further argues that the successive Nigerian Constitutions led to the distinction

between national and local citizens and this has, furthermore made it difficult to

promote citizenship and constitutionally guaranteed citizen rights.517

513

Nwogugu op. cit. 428. 514

Okoli op. cit. 37. 515

Id. at 432. 516

Adesoji AO “Indigeneship and Citizenship in Nigeria: Myth and Reality” The Journal of Pan African Studies Vol. 2 No. 9 (March 2009) 154.

517 Id. at 155.

81

Nwogugu observes that the Decree prescribing the modes and qualifications for the

acquisition of Nigerian citizenship does not discriminate between persons of African

descent or nationals of African states and other foreigners.518 The same

requirements are demanded from all foreigners, irrespective of colour or creed. The

general trend in the law is, however, to make the acquisition of Nigerian citizenship

difficult, which ties in with the new economic rights conferred on Nigerian nationals

under the Nigerian Enterprises Promotion Decree of 1972.519 This sentiment is

echoed by Okeke and Okeke who postulate that the conditions for becoming a

Nigerian citizen range from easy (by birth) to hard (naturalisation). The condition to

be met by a non-Nigerian, wishing to acquire Nigerian citizenship through

naturalisation include that such a person must have been domiciled in Nigeria for not

less than 15 consecutive years or 15 years in aggregate over a 20 year period.520

Botswana

Botswana became independent in 1966 and since then, according to Nyamnjoh,

identity politics became increasingly important alongside more exclusionary ideas of

nationality and citizenship, as minority claims for greater cultural recognition and

plurality were encountered by majoritarian efforts to maintain the status quo of an

inherited colonial hierarchy of ethnic groupings.521 Tswana customs not only

acknowledge the individual’s rights to participate in communal affairs, but also

provide against a kgosi (king) abusing his authority through constant reminders that

a king is king only because of his followers.522

Nyamnjoh states that while legal provisions might promise citizenship to all in

principle, the practice is one of inequality among individuals and groups.523 In

Botswana one finds that there is a hierarchy of citizenship fostered by political,

518

Nwogugu op. cit. 438. 519

Id. at 439. 520

Okeke GN & Okeke CE “The Acquisition of Nigerian Citizenship by Naturalisation: An Analytical

Approach” IOSR Journal of Humanities and Social Sciences Vol.8 Issue 2 (Jan 2013) 58. 521

Nyamnjoh Local Attitudes op. cit. at 755. 522

Id. at 756. 523

Ibid.

82

economic, social and cultural inequalities which enable some individuals and groups

to claim and articulate their rights better than others.524 Not all outsiders are

welcome and not all who are welcome are accorded the same respect, privileges or

rights by Botswana.525

According to Nyamnjoh, longstanding assumptions of citizenship and nationhood are

being questioned and Botswana minorities are employing a variety of methods to

seek better “political representation, material entitlements and cultural recognition”

for themselves as groups.526 “While every Botswana national can claim to be a

citizen or “local” legally, some such as the BaKalanga are perceived in certain

Tswana circles as less authentic citizens or locals.” 527 Nyamnjoh postulates that

citizenship and belonging, even for nationals of the same country, are all a matter of

degree.528

The Botswana Citizenship Act529 determines that a person becomes a Botswana

citizen by birth or descent only. If a dual status is present, then the other citizenship

must be renounced upon the attainment of the age of 21 years. Failure to renounce

the other citizenship will lead to the loss of Botswana citizenship. Mere birth within

the country does not confer citizenship and is only possible if the father of the child

is a Botswana citizen. A person may claim citizenship by descent if the father is a

citizen regardless of his country of birth. It is possible to obtain Botswana citizenship

through marriage if a person is married for longer than 5 years or such person has

continued to reside in Botswana for longer than 5 years prior to the marriage to a

Botswana citizen.530

524

Nyamnjoh Local Attitudes op. cit. at 758. 525

Ibid. 526

Id. at 760. 527

Id. at 762. 528

Ibid. 529

Botswana Citizenship Act 1998. 530

Ibid.

83

Botswana does not allow dual citizenship and a Botswana citizen is able to renounce

his/her citizenship. A Botswana citizen by birth or descent may apply to have their

citizenship reinstated if they had previously renounced their Botswana citizenship.531

From the preceding discussion one may draw the conclusion that Botswana equates

a national with a citizen. The mere fact that a person can only become a Botswana

citizen by either birth or descent gives a clear indication that reference in actual fact

should have been made to Botswana nationality by birth or descent.

South Africa

According to Klaaren the origins of South African citizenship lie in the regulation of

the mobility of its people. History teaches that provincial elites drafted a series of

comprehensive immigrations laws before joining together in the Union.532 National

Party legislation, after the 1948 electoral victory, attempted to completely regulate

African movement and identity documentation.533 Strydom postulates that from the

distinction sometimes drawn between nationality and citizenship, it was understood

that nationality is merely a formal indication of state membership whilst citizenship

implies a person’s political participation and enjoyment of political rights.534 He

further states that the freedom of the state to make its own arrangements

concerning nationality and citizenship without interference from international law,

explains how apartheid South Africa could have denied citizenship to the majority of

South Africans yet have invested them with nationality for purposes of international

law.535 Neocosmos avers that ethnic nationalism was what the apartheid state

“attempted to produce with its plan to turn rural areas denoted as ‘traditional

531

Botswana Citizenship Act Section 17. 532

Klaaren Citizenship op. cit. at 60-1. 533

Id. at 60-2. 534

Strydom The theory of op. cit. at 103. 535

Ibid. In essence black South Africans were vested with South African nationality but were denied

citizenship, thus effectively denying citizenship rights such as the right to vote, to own property etc.

84

homelands’ into ‘independent’ or ‘self-governing states’ – the so-called

Bantustans”.536

Klaaren suggests that prior to the advent of constitutional democracy, the Republic

had a concept of citizenship which was largely based on statute and “simply did not

count for much.”537 From 1990 to 1994, citizenship was placed within the framework

of a constitutional democracy and the South African Citizenship Act 88 of 1995 was

largely a consolidation of pre-existing law.538 Klaaren postulates that the aim of the

1995 Act was to create a unified national citizenship regime and therefore it repealed

the various statutes governing the citizenships of the homelands.539 South African

citizenship has not been based on membership in a political Republic or membership

in a cultural bloc or individual participation in a post-nationalist universal human

rights culture, but is instead based on residence as acknowledged through law.540

South Africa is technically a jus soli jurisdiction with a territorial right to citizenship

which is restricted at law.541 Citizenship by birth is limited by legislation to a child

born in the Republic to a South African citizen or to parents who are both permanent

residents. Dual-nationality is generally allowed although provision has been made

for the criminalisation of dual-nationality where the use of the foreign nationality is

made to gain an advantage or to avoid responsibility or a duty.542

South African legislation also falls foul of clearly differentiating between nationality

and citizenship. Reference is also made to becoming a citizen by birth (which should

be nationality at birth) and a person being able to hold dual nationality.

536

Neocosmos M “The Apartheid State and Migration to South Africa: From Rural Migrant Labour to

Urban Revolt” From ‘Foreign Natives’ to ‘Native Foreigners’ Explaining Xenophobia in Post-apartheid South Africa (2006) 39. www.codesria.org/IMG/pdf/neocosmos-3.pdf

537 Klaaren J “South African Constitutional Citizenship” I*CON Symposium: The Evolving concept of

citizenship in constitutional law 5 October 2009. http://www.citizenshiprightsinafrica.org [accessed on 13/10/2012]

538 Id. at 60-3.

539 Id. at 60-5.

540 Viewed from the past, the future of SA Citizenship Draft FMSP Working Paper: 12 May 2009.

541 Klaaren supra at 60-14.

542 Ibid.

85

Namibia

Cognisance must be had of Namibia’s, formerly known as South-West Africa, colonial

history. Before the first official annexation of South-West African territory occurred,

the country was solely inhabited by its native people, although as from about 1805, a

number of missionaries tried to convert the inhabitants to the Christian faith.543 In

1883, Adolf Lüderitz bought Angra Pequeňa from the Nama chief Joseph Fredericks.

In 1884, German chancellor Otto von Bismark promised to protect the territory which

had been sold to Lüderitz, (today known as Lüderitzbucht) thereby establishing

German South-West Africa as a colony. Germany formally made representations at

the Cape Colony to ensure that its claim to the territory was known, and during June

1884, Great Britain formally recognized German possession of the territory. In July

of the same year, Walvis Bay was incorporated in the South African Cape Colony.544

In 1915, South Africa, being a member of the British Commonwealth and a former

British colony, occupied the German colony of South-West Africa. South-West Africa

remained under British South African rule until about 1918 and from 1919 – 1945

South-West Africa became a League of Nations mandate.545 In 1946, when the

League of Nations was superseded by the United Nations (UN), South Africa refused

to surrender its earlier mandate to be replaced by a UN mandate, which mandate

required closer international monitoring of the administration of the territory. The

original mandate was revoked by the UN in 1966 and the struggle against South

African rule eventually led to Namibia becoming an independent Republic on

21 March 1990.546

Blumhagen in his doctoral thesis writes that an own nationality for German colonies

was not at the order of the day, as these colonies were not considered to be states

543

Dierks K Dr Chronology of Namibian History. From pre-historical Times to Independent Namibia

1999 www.klausdierks.com [accessed on 3/07/2014]. 544

Ibid. 545

Ibid. 546

Ibid.

86

in their own right.547 German nationality was generally acquired through obtaining

Federal citizenship and this principle also found application in the various German

protectorates.548 As the majority of settlers in South-West Africa were of German

origin, it was through this principle and the applicable descendancy principle that

German nationality and citizenship were thus transferred to descendants of the

German settlers.549

In accordance with being a territory under indirect British rule, the South-West Africa

Naturalisation of Aliens Act 1924550 was passed which provided that every adult

European who, being a subject of any of the late enemy powers, was domiciled in

the territory would be deemed to have become a British subject naturalised under

the Act of 1910, unless a declaration to the contrary was signed within six month

after the commencement of the Act. The 1924 Act states that the Naturalisation of

Aliens Act, 1910 “shall be of force and effect within the Territory” as with the

commencement of the 1924 Act.551

Considering Namibia’s history, it is easy to understand that the peoples of her

territory were first subjected to German laws, then English law, then South African

legislation and finally were able to draft and enact their own legislation. This led to

Namibia’s people holding various nationalities due to the successive nature of

colonial rule. Descendants of the first German settlers have generally retained their

German nationality as did those of British descent who settled in the territory. Any

person born in the then South-West Africa, whilst under South African administration,

automatically became a national of South Africa. Pre-independence it was typical for

individuals of European descent to be dual nationals. Post-independence and with

the promulgation of the Namibian Citizenship Act 14 of 1990, dual status was no

longer acceptable or allowed.

547

Blumhagen HE Die Doppelstaatigkeit der Deutschen im Mandatsgebiet Südwestafrika und ihre völkerrechtlichen Auswirkungen (1939) 3.

548 Ibid.

549 Ibid.

550 (Act No. 30 of 1924)

551 South West Africa Naturalisation of Aliens Act 1924 (Act No, 30 of 1924) published in Government

Notice No. 121/1924 82 - 83.

87

The enactment of Namibia’s own Constitution and Citizenship Act led to the

institution of litigation as dual nationality was no longer allowed in terms of present

Namibian legislation. The Namibian Constitution is silent on the holding of dual

nationality, although it does provide that Namibians by birth or descent may not be

deprived of their Namibian citizenship even if they have, after independence,

acquired the citizenship of another country by any voluntary act.552 The Citizenship

Act per Section 26 clearly prohibits a “Namibian citizen to also be a citizen of a

foreign country.”

In Le Roux v Ministry of Home Affairs and Immigration and others, 553 the Court

found that “…there is an automatic acquisition of nationality for those born in

Namibia. They cannot be deprived of that, even if they have acquired citizenship of

another country.” In Berker v Ministry of Home Affairs and Immigration & Others,554

the Court held that the Immigration Official had acted unlawfully by depriving a

Namibian citizen by birth of her Namibian passport by virtue of the fact that she was

also in possession of a German passport and nationality, which nationality she held

by virtue of one of the parents being a German national.

The Namibian courts have expressed that, in terms of the Namibian Constitution, a

person who is a Namibian national by birth or descent cannot be deprived of his/her

Namibian nationality even if he/she is in possession of another nationality. Namibian

nationals are thus allowed to be dual nationals. A person who became a Namibian

citizen by means of naturalisation or registration may not hold the nationality of

another country.

With the enactment of Namibian legislation it again becomes clear that the

interchangeable use of nationality and citizenship has done the general population no

favours. Even the judgements given by the courts have the propensity to use the

terms interchangeably. All the judgments, however, make it very clear that being a

552

The Constitution of Namibia Chapter 2, Article 4. 553

2011(2) NR 606 (HC). 554

(A 36-2011) [2012] NAHC 51.

88

Namibian national by birth or descent allows such national to hold a dual status of

nationality. From the gist of the judgements given it seems trite that a person who

became a Namibian citizen through naturalisation or the limited regime of

registration is not allowed to hold a dual status. Whether this dual status is to refer

to nationality or citizenship is, however, unclear.

Taking specifically the Namibian situation into consideration, it is submitted that the

drafters of the Namibian Constitution envisaged that all persons who had a bond

with South-West Africa would and should be able to become Namibian “citizens”

upon the attainment of independence. The “once off” one-year period after

independence in which “foreigners” could become Namibian citizens by means of

registration, indicates that the independent Namibia wanted all persons within its

national borders to be part of the new nation, irrespective of their origin or

nationality, provided such a person could prove an uninterrupted period of domicile

in the country of not less than five (5) years. Many “foreign” nationals became

Namibian citizens by registration as many had grown up in South-West Africa, and as

young adults were contributing to and participating in its economic, social and

political development at the time of independence. The choice was made to become

a citizen for economic, social and to some degree political reasons. This choice was

never made to renounce one’s “foreign” nationality. To put it differently – a

European person having grown up in Africa does not become a native African by

mere choice. Such person could possibly be referred to as a European African,

similar to how Africans refer to themselves in America – African American.

Having regard to the colonial histories of African nations, one gets the sense that the

newly independent states wanted to make a differentiation between nationality and

citizenship, but did not know how to achieve this without engaging in outright

“reverse discrimination”. It is also trite that the descendants of the settlers or

colonialists know no other “home” than the African state that they were born and

raised in, yet they remain very conscious of their “settler/colonial” roots. It is

suggested that especially in Africa, where the European man invaded the territory of

the African man and settled there, the distinction between who is a national and who

89

is a citizen should be clearly defined. As was customary in ancient times, all those

who were/are born within the sovereign territory of a state should become nationals

of that state, whereas all persons who wish to make an economic, social and/or

political contribution towards the growth and/or development of the state should be

afforded the right to become a citizen when certain criteria have been met.

Citizenship should not and writer hereof maintains that it cannot, determine

nationality and vice versa.

Many African states have enacted legislation that is prohibitive of dual citizenship.

This view is supported in so far as dual citizenship is understood in the context of

citizenship meaning civil rights and duties owing to a specific national community.

Domicile or place of habitual residence is often used in municipal law to determine

jurisdiction and it is submitted that the law of domicile should also be a determinant

of effective citizenship. As domicile law thus prescribes that every person should

have only one domicile at any one time, so every person should have only one

citizenship at any one time.

In the concluding chapter following hereunder, an opinion will be given whether it is

proper to refer to dual nationality or dual citizenship. Whether any dual status

should be entertained and if yes, what its consequences if any would be, will also be

discussed.

90

CHAPTER SIX

Conclusion

Are we any closer to a definitive answer to the question of which is the more

appropriate term to describe any dual status - dual nationality or dual citizenship? It

was established that the ancients were not familiar with the concept of nationality.

On the other hand, the term citizen had meaning to them as this was a status that

conferred certain rights and obligations on a person and was related to being a

member of a certain city-state. Dual-citizenship became an acceptable status under

Roman rule as it was beneficial to the Romans that some persons be citizens of

Rome as well as citizens of their city of origin. Only when empires, kingdoms and

fiefdoms later formed nation-states, did the term ‘nationality’ come into use,

essentially describing a person who was a member of a specific nation-state - thus

what transpired was that a person became, for example, an Italian national and a

citizen of the city of Rome.

Benhabib asserts that the volatile and often uncertain mixture of practices such as

citizenship and sovereignty, which have characterised our understanding of modern

politics since the 1648 Treaty of Westphalia, have understandably given rise to

conflicting commentaries and interpretations.555 Spiro states that “nationality” and

“citizenship” used to be clearly distinguishable since only nationality was salient in

international law, but since these terms are repeatedly used interchangeably, it is his

contention that “citizenship” may emerge as the more dominant description with all

of its implications of equality and rights.556 In essence this view is supported by

Cook-Martin who postulated that citizenship in developing countries is often used in

an attempt to resolve internal inequalities.557

555

Benhabib Twilight op. cit. at 206. 556

Spiro A New International op. cit. at 717. 557

Cook-Martin The Scramble op. cit. at 99.

91

Bisschop argued that “the 1930 Conference at The Hague for the codification of

international law could not find a solution for the difficulties attached to statelessness

and double nationality for the simple reason that the various States adhered to their

absolute sovereignty which gave them the right to decide who would be their

nationals.”558 In 1934, Bisschop already advanced that the individual should be

granted the basic human right of being a (world) citizen first and foremost.559

National identity and citizenship are neither mutually exclusive nor does one pre-

suppose the other. Oyelaran and Adediran assert that while “national identity is a

socio-psychological disposition, citizenship is both a legal status conferrable on

individuals as members of a polity and the existential experience of such individuals

regardless of their de facto national identity.”560

Let us return to the example used of Abigail who was born in Italy to an Italian

mother and Dutch father and whose parents immigrated to the then South West

Africa (now Namibia) when Abigail was 5 years old. In 1990, Namibia became an

independent, sovereign state and Abigail was at the time aged 22 years. The

question was posed whether Abigail possessed dual (or multiple) nationality or dual

citizenship. A further question was also asked whether her dual or multiple statuses

were of importance to anyone.

The answers to the questions posed above are not clear cut. Spiro contends that

maintaining additional national attachments becomes an expression of individual

identity,561 which contention is supported by Heater who declared that “the individual

who genuinely feels a multiple identity does not need to experience this richly

coloured persona every moment of his/her conscious life. Just as a duck will fly,

swim or waddle depending on the circumstances, so the citizen will identify with

his/her locality, state or the world depending on circumstances”.562 Benhabib

supports the above statements made by averring that we are moving away from

558

Bisschop Nationality op. cit. at 324. 559

Ibid. 560

Oyelaran and Adediran The African op. cit. at 176. 561

Spiro Dual Nationality op. cit. at 1416. 562

Heater Citizenship op. cit. at 323.

92

understanding citizenship to be national membership and are increasingly moving

towards a citizenship of residency which strengthens the multiple ties to locality, to

the region and to transnational institutions.563 Spiro argues that by extending

citizenship, solidarity will be enhanced by facilitating full political integration.564

Every citizen has one or many national identities according to Hoffman and due to

this there is a need to detach nationality from the state, since a national identity (or

identities) forms part of the way individuals see and express themselves.565 This

can, however, only be achieved when a realistic way has been found to look beyond

the state.566

From the above, it would seem that whether a person is a dual national or dual

citizen is of importance to the individual and also relevant to the state in which such

a person resides. The argument was made that nationality is determined by applying

either the principle of jus soli, jus sanguinis, or a combination of the two principles.

Nationality in effect has more to do with ethnicity and race (the blood that runs

through your veins) than with custom, religion or common language, although these

may play a part in determining nationality. It is contended that simply the place of

birth does not determine a person’s nationality – the example was used that a

European child, being born in Asia does not make such a child an Asian. Another

example that may be used is that persons of African origin having lived in America

for many generations (still) refer to themselves as African-American. Such persons

still refer to their “roots” or nationality, being African. If we accept that nationality is

“inherited” and as such requires no positive action to be taken to acquire such

nationality, then it should follow that an individual could be a national of more than

one nation or race. Dual or multiple nationality should then not pose any legal

impediment to the holding of such dual or multiple nationality. From this it then

further follows that, since nationality is “inherited”, nothing can be done to denounce

it – a European living in Africa will not become an African in terms of nationality or

563

Benhabib Twilight op. cit. at 262. 564

Spiro A New International op. cit. at 741. 565

Hoffman State and Nationalism op. cit. at 58. 566

Id at 59.

93

race and can therefore not renounce his/her “Europeanism”. To use another

example – a dog and cat who grow up together will copy some of the behaviours of

the other, but despite them living together in harmony for many years, the dog will

not become a cat and vice versa. It can, however, be postulated that although their

“nationalities” may differ, they share the same “citizenship” of the common

household that they live in.

It has also been determined that citizenship is “that political artefact through which

the state constitutes and perpetually reproduces itself as a form of social

organisation” as Adejumobi succinctly stated.567 Kerber opined that it is in citizenship

that the personal and political come together, because citizenship is about how

individuals make and remake the state.568 It has been argued that citizenship refers

to social, economic and political rights that citizens have pursued and even fought in

revolutions for. The concept of citizenship pertains to the participation or voice that

those who permanently reside within a State wish to have with regard to how such a

particular State is governed in terms of social, economic and political development.

Shababi contends that the diversity of the political society of today requires that the

“condition of membership be grounded not in an exclusionary pre-political heritage of

belonging, but in a civic bond of association.”569 Benhabib on the other hand, is of

the opinion that the current state of global interdependence requires new modalities

of cooperation and regulation.570 Spiro is of the belief that state discretion is no

longer unfettered and that citizenship practice must account for the interests of

individuals as well as those of the state.571 Benhabib further postulates that political

participation, particularly within the European Union, is heralding a new institution of

citizenship as a result of the universalistic extension of civil and social rights.572

567

Adejumobi Citizenship op. cit. at 152. 568

Kerber The Meanings op. cit. at 854. 569

Shababi, OAP “Who is afraid of constitutional patriotism? The binding source of citizenship in

constitutional states.” Social Theory and Practice Vol. 28 (2002) 404. 570

Benhabib Twilight op. cit. at 262. 571

Spiro Dual Nationality op. Cit. at 717. 572 Benhabib supra at 262.

94

Having regard to the development of political history, it is clear to see that citizenship

and nationality were not treated as being one and the same concept. Citizenship has

always been a status that people strived to attain, and as Strydom so aptly pointed

out “political rights are a result of the pursuit of citizenship and not an essential

requirement for citizenship.”573 It is contended that wanting to be or to become a

citizen of a certain state has very little to do with a person’s nationality, but much to

do with where that person wants to exercise his/her rights as citizen - where that

person chooses to be an active member of society.

It is submitted that as a person cannot renounce their nationality no matter where in

the world they find themselves to be, every person should, however, be able to

change their citizenship status as and when required. To state it differently – being

a national of state “A” it should not automatically be presupposed that such a person

is also a citizen of state “A”. National of state “A” could be a citizen of state “Y” as

such person may have chosen to be an active member in state “Y”. The global

mobility of persons is more of a reality today than 50 or 60 years ago and these facts

support the hypothesis that persons may wish to change their citizenship on more

than one occasion. Spiro advances that the increased toleration of dual nationality

strongly suggests the demise of exclusivity and a redefinition of citizenship.574 Writer

hereof postulates that where a person’s domicile is, is also the place where such

person’s (current) interests lie and where such person would want to make a

contribution to society – in essence where your heart is, there is your home. Spiro

contents that “mandating access to citizenship on a territorial basis and accepting

dual nationality will enhance the rights of those who would otherwise be

excluded.”575

The international common law position that every state may decide who its citizens

are is not affected by the above argument. States still have the right to decide

whom they would want to allow becoming a citizen. It is trite that requirements for

573

Strydom The theory of op. cit. at 109. 574

Spiro Dual Nationality supra at 1453. 575

Spiro A New International supra at 738.

95

citizenship are found in all nationality laws and such requirements should remain for

the attainment of citizenship. My argument is substantiated by the case of United

States v. Wong Kim Ark (1898) where the Court held that “it is the inherent right of

every independent nation to determine for itself and according to its own constitution

and laws what classes of persons shall be entitled to its citizenship (my

emphasis).”576 It is further asserted that every person be able to hold only one

citizenship at a time – in accordance with the law of domicile – and therefore it

would be appropriate to require a person to renounce their previous citizenship in

order to attain a new/different citizenship.

Turner is of the opinion that the protection offered by national citizenship (more

appropriately nationality) is declining and yet the state remains important in the

enforcement of social and human rights. He defines social rights as those

entitlements enjoyed by citizens and which are enforced by courts within the national

framework of a sovereign state.577 What then of Abigail and her “situation”? Taking

all the aforegoing into consideration it would be correct to state that she is a dual

national by birth – Italian mother and Dutch father, both of whom have “transferred”

their nationality to Abigail through the principle of ius sanguinis. In terms of

Namibian law, Abigail could have elected to acquire Namibian citizenship after

independence. Should Abigail at some point decide to relocate, say to Italy

permanently, she would then acquire Italian citizenship “on top” of being an Italian

national by birth. She would have to renounce her acquired Namibian citizenship, as

Namibia does not allow dual citizenship for those persons who were not born in

Namibia and of Namibian citizen(s). As Spiro has stated, dual nationality “should not

be merely tolerated but should be embraced and the renunciation of foreign

allegiances required in the citizenship oath should be eliminated.”578

It is agreed that if Spiro might be correct in his assumption that the term

“citizenship” will eventually replace the concepts of nationality and

576

169 U.S 649, 668 as quoted by Spiro Ibid. 577

Turner Citizenship op. cit. at 234. 578

Spiro Dual Nationality supra at 1416.

96

citizenship, then it must also follow that a differentiation be made with regard to the

all-inclusive term citizenship. Persons born within a certain state may not only be

“citizens” by birth but also by election and should therefore then not merely be

referred to as citizens. As Turner has already used the term ‘national citizenship’ for

persons who should have been referred to a nationals, it is suggested that should the

term ‘citizenship’ become a more inclusive term, then nationality be referred to as

‘national citizenship’ since in the opinion of the writer hereof this term would indicate

that a person was both a birth right citizen as well as a citizen by choice in the same

state.

In summation, nationality and citizenship are not interchangeable and do not mean

the same thing. Since nationality is ”inherited” and determined by birth, nothing can

be done to renounce nationality status. Citizenship on the other hand, is a status

that can be either automatically acquired (by birth and continued residence in the

state of nationality – “national citizenship”) or one can perform any voluntary act to

acquire the citizenship of a state unrelated to a person’s nationality. If citizenship is

to be understood as political and social rights that may be acquired with a certain

state or community, then it stands to reason that a person should also be able to

renounce the citizenship of one state for the citizenship of another state or

community.

It is suggested that dual or even multiple nationality should be embraced, but dual

citizenship should be curtailed. States should consider allowing “foreigners” to

become their citizens without requiring of such foreigner to renounce his/her

nationality, which it is submitted, a person is unable to do. Renouncing another

citizenship that had been acquired (either by birth or voluntary act) should be

renounceable if the receiving state does not allow dual citizenship. An individual who

is a “national citizen” of State A and who wishes to become a citizen of State P

should, it is submitted, renounce their State A citizenship without forfeiting their

State A nationality, which would remain “effective” irrespective in which State the

particular individual would choose to be a citizen.

97

Spiro is of the opinion that citizenship status (as an overarching concept) will

continue to carry protective benefits and therefore “habitual residents and their

progeny should not be relegated to non-citizen status indefinitely”.579 At some future

point (after the effluxion of a set time period) territorial presence should give

eligibility for citizenship acquisition.580

Leigh suggests that the requirement for formal nationality for the purpose of

diplomatic protection be done away with.581 He argues, and I agree, that the

effective link criterion be the only requirement for purposes of diplomatic protection,

as this would allow a state to bring a claim on behalf of any individual who is

effectively connected with such a state, irrespective of whether such individual is a

national in the formal sense.582 It is further contended that this may, in time, result

in access to international justice by a far larger class of people than is currently the

case.583 Hoffman argues that support is needed for policies that make it easier for

residents to become citizens, possibly then resulting therein that or nationality may

become ‘dual’ or ‘multiple’.584

In final conclusion, I propose that the confusion which exists as to whether a person

is a dual national or a dual citizen may easily be removed and addressed. The

international community is the main culprit in perpetuating the confusion as it allows

the terms citizenship and nationality to be used interchangeably – this is clearly seen

in the wording of international conventions and the various nationality laws. It is

suggested that the international community agree thereto that citizenship be defined

as a status that may and can be freely chosen and as such resultantly be freely

relinquished and (easily) changed. Nationality on the other hand, should be defined

as a “status” that is acquired by operation of the law and at birth either through the

principle of jus sanguinis or jus soli or even a

579

Spiro A New International supra at 720. 580 Ibid. 581

Leigh Nationality supra at 470. 582 Ibid. 583

Id. at 475. 584

Hoffman State and Nationalism supra at 63.

98

combination of the two principles. It is opined that no combination of the two

nationality principles be entertained as this would curb the acquisition of multiple

nationalities by operation of the law. It further stands to reason that a nationality

status acquired at birth cannot be changed. To use an animal analogy - if you were

born a camel, you will die a camel, no matter where in the world you resided during

your life time.

I agree with the sentiments of Hoffman and Spiro mentioned above, that the

acquisition of citizenship be made easier and that nationality should play no part in

such acquisition. A “national citizen”, that is a person who is a national and citizen of

a certain state, should not be required, and neither should this be an automatic

consequence, to relinquish their nationality upon the attainment of a “foreign” or

new citizenship. It is proposed that citizenship acquisition be closely linked to the

principle of domicile and that it become common practice through which an

individual may only have one citizenship at a time, but may hold dual or multiple

nationalities. It is further submitted that it is the status of citizen that allows an

individual to take part in the economic, social and political activities of the chosen

state. It stands to reason that each state be allowed to determine who its citizens

should be and what a prospective citizen should “bring to the table” to be granted

such citizenship.

The next question that may now be asked is to whom would a state extend

diplomatic protection – the citizen or the national? It has been briefly discussed in

the above chapters that the effective nationality link be replaced by an effective

domicile link or requirement. I propose that should the international community

move towards an effective domicile principle, it would become irrelevant whether the

individual in question seeking diplomatic protection is a national and/or a citizen –

the effective domicile link would give the protecting state the necessary locus standi.

It may be concluded, and considering the opinions of the various writers consulted

on this subject to write this dissertation, that the incidence of dual or multiple

nationalities poses a minimal, if any, threat to the international community. Allowing

99

persons from different nations, tribes, ethnicities and cultures to become members of

a different state, should be left at the discretion of the state in question. Granting

citizenship to a variety of different peoples may enhance foreign trade, encourage

economic growth and social diversity. Granting citizenship to a “foreigner” should,

however, be linked to a specific period of domicile in the country as well as the

“passing” of certain citizenship requirements as may be determined by each

individual state. I suggest that by allowing persons of different nationalities to

become citizens in Africa may bring with it more positive economic results and much

needed growth and development. The increased global mobility of people and the

“shrinking” of the world due to technological advances, make exclusionary practices

difficult to maintain especially seen in the light of greater global tolerance and

acceptance of diaspora contributing socially and economically in other parts of the

world.

100

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